[2025] EWCA Civ 1211

The judge addressed the issue at §194 to §200 of his judgment. He noted that Parliament had specifically provided, in paragraphs (a) and (c) of s.53(1), that signing may be by an agent. He concluded that the omission of any reference to an agent in s.53(1)(b) indicated that “some person who is able to declare such trust” is intended to be limited to the settlor himself, and not an agent.

As to the argument advanced before him by NIOC that a company must necessarily sign through the agency of a natural person, the judge said that a company acts by its officers “or, as it was put by counsel for NIOC, the alter ego of a corporate body is its board of directors”. Accordingly he drew a distinction between a signature by a director, which would be a signature by some person who is able to declare such trust, and a signature by a mere agent, which would not.

The Fund also contended that the law takes a flexible approach to the requirement for signing, and that the touchstone for determining what is a signature is an intention to authenticate a document, citing Hudson v Hathway [2022] EWCA Civ 1648; [2023] KB 345. That case, the judge noted, concerned the different question whether a signature by email sufficed for the purposes of s.53(1)(a) and (c). He also noted the comment (at §32 of the judgment of Lewison LJ) that the formalities required by s.53 are necessary in order that property rights in land should be certain. Thus, he concluded, the formality required by s.53(1)(b) reflected a need perceived by Parliament for declarations of trust to be signed by some person who is able to declare such trust, rather than an agent lawfully authorised in writing.