In September 2008 the three defendants guaranteed a loan granted by the claimant to a partnership. The defendants’ signatures appeared on the guarantee under the words “Signed and delivered as a deed by”, and a witness’s signature under the words “and witnessed by”. In August 2020 the claimant brought a claim under the guarantee, which it said was a claim on a specialty and therefore subject to the 12-year limitation period in section 8 of the Limitation Act 1980. The defendant contended that the guarantee did not comply with the attestation requirements in section 1(3)(a) of the of Law of Property (Miscellaneous Provisions) Act 1989, by which an instrument was validly executed as a deed by an individual only if “it [was] signed by him in the presence of a witness who attest[ed] the signature”. The claimant’s action therefore, not being a claim on a specialty, was subject to a six-year limitation period and out of time.
On the determination of the preliminary issue whether the guarantee had been properly executed as a deed, in particular whether (1) it had been signed in the presence of a witness, and (2) a witness could attest multiple signatures by a single signature—
Held, the ordinary meaning of being a “witness” to the signature in a deed was not just to be present at the signing, rather the witness had to observe, watch or see it, so that he or she could sign to attest to witnessing the signature. The word “witnessed” in the attestation clause presupposed that the witness had been present and observed all the signatures being made. In the light of the statutory context, the mischief which attestation was intended to address, and the fact that under the Interpretation Act 1978 words in the singular included the plural, the phrase “a witness who attest[ed] the signature” in section 1(3)(a) of Law of Property (Miscellaneous Provisions) Act 1989 could include a witness who attested the signatures, and attestation by a witness of multiple signatures did not require a particular form of words. In the present case, all three defendants had signed the guarantee together, “witnessed by” (ie observed by) the witness, who then signed to say so in all their presence. The attestation of the guarantee being entirely compliant with the requirements of section 1(3)(a), the claimant had proved the validity of the guarantee as a deed (paras 36, 40, 41, 53–55, 59, 63, 64, 79, 80).
Per curiam. “Attest the signature” in section 1(3)(a)(i) of the 1989 Act may include a requirement for the witness’ attestation to be contemporaneous with the signature witnessed. However, if so and the witness attests on the same day as the signature witnessed, then on any reasonable view, that is contemporaneous or part of the same transaction with the signing. That would still be the case even if the witness does not sign in the actual presence of the signatory party, or effectively simultaneously with them (para 78).
John Aldis (instructed by Bell Lax Ltd, Sutton Coldfield) for the claimant.
Simon John Bradshaw (instructed by Clarkes Solicitors LLP, Telford) for the defendants.