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© 2010 Sweet & Maxwell

Weston v Gribben

Also known as:

Chancery Division

20 December 2005

Case Analysis

Where Reported [2005] EWHC 2953 (Ch); Official Transcript;

Case Digest

Subject: Negligence

Keywords: Authentication, Causation, Certificates, Duty of care, Foreign and Commonwealth Office, Notarisation

Catchphrases: duty of care, foreign and commonwealth office, causal connection with losses sustained following
issue of incorrect certificates

Abstract: The Foreign and Commonwealth Office applied for summary judgment against the claimant
property owner (W) in relation to his alleged cause of action against it in negligence and misfeasance in a public
office. W had been the legal owner of three Spanish properties. The first defendant (G), a notary registered in
Scotland, had purported to notarise in London four documents each with W's typed name and signature. The FCO
had stamped and affixed to the documents certificates, known as apostilles, in accordance with the Hague
Convention 1961, which contained certificates that G had signed the documents, that they had been signed by G
acting in his capacity as a notary public and that they bore G's seal/stamp. W maintained that he had not met G or
signed any documents and had not been in London at the time. W alleged that the false documents duly notarised
with the apostilles attached to them had been fraudulently used to transfer title of his properties to innocent third
parties. W had been unsuccessful in recovering two of the properties as the Barcelona Court had held that the
documents were on their face genuine and authenticated by the British government's apostilles. For the purpose of
the summary judgment application, the FCO accepted that procedures had not been carried out correctly and that the
second certificate was incorrect, as G had had no power to carry out his notarial duties in England and Wales as he
was registered in Scotland. The FCO submitted that there was no causal link between the alleged acts of complaint
against it and the loss sustained by W, by reference to the mountaineering example given in ~South Australia Asset
Management Corp v York Montague Ltd~ [1997] 3 All E.R. 365.

The Foreign and Commonwealth Office was arguably liable for the consequences that occurred when an
incorrect apostille, which it had issued to certify the authenticity of notarised documents, had been put to the use that
it was intended for.

Held, refusing the application, that (1) no generalised rule could be drawn from Lord Hoffman's judgment
in South Australia Asset Management Corp v York Montague Ltd. The mountaineering example was but a factual
example designed to show how a doctor could not be liable for an injury that was an entirely forseeable consequence
of mountaineering but which had nothing to do with the medical advice that had been sought. The analogy should

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not be pressed too far. That case did not have any application to the instant facts, South Australia Asset Management
Corp v York Montague Ltd distinguished. (2) What people intended to do as a result of the apostille fixed to the
documents was utilise them to demonstrate their authenticity by reference to (i) the notarisation of the notary, and
(ii) the certificate as to the status of the notary by the FCO. If the FCO in carrying out its functions under the
Convention negligently provided a certificate, it would be arguably liable for the consequences that occurred when
the apostille was put to the use that it was intended for. G's negligence and the fact that the document could have
been executed in Scotland was irrelevant. It was significant that the Barcelona Court had found that the documents
had been on their face genuine and authenticated by British government apostilles. It was therefore not possible to
reach a conclusion that the losses sustained by W were not legally caused by the alleged negligent acts of the FCO.
W's claim was therefore not one that had no real prospect of succeeding.

Judges: Peter Smith, J.Smith, Peter, J

Counsel: For I :the claimant: Mark Warwick For I :the second defendant: Robert Jay QC, Adam Robb

Solicitors: For I :the claimant: Henri Brandman & Co For I :the second defendant: Treasury Solicitor

Appellate History

Related Cases

Weston v Gribben
[2006] EWCA Civ 1425; [2007] C.P. Rep. 10; (2006) 103(44) L.S.G. 27; (2006) 150 S.J.L.B. 1463; Independent,
November 8, 2006; Official Transcript; CA (Civ Div)

Significant Cases Cited

distinguishing
South Australia Asset Management Corp v York Montague Ltd
[1997] A.C. 191; [1996] 3 W.L.R. 87; [1996] 3 All E.R. 365; [1996] 5 Bank. L.R. 211; [1996] C.L.C. 1179; 80
B.L.R. 1; 50 Con. L.R. 153; [1996] P.N.L.R. 455; [1996] 2 E.G.L.R. 93; [1996] 27 E.G. 125; [1996] E.G. 107
(C.S.); (1996) 93(32) L.S.G. 33; (1996) 146 N.L.J. 956; (1996) 140 S.J.L.B. 156; [1996] N.P.C. 100; Times, June
24, 1996; Independent, July 2, 1996
HL

NV Koninklijke Rotterdamsche Lloyd v Western Steamship Co Ltd (The Empire Jamaica)

[1955] P. 259; [1955] 3 W.L.R. 385; [1955] 3 All E.R. 60; [1955] 2 Lloyd's Rep. 109; (1955) 99 S.J. 561
CA

Banque Financiere de la Cite SA (formerly Banque Keyser Ullmann SA) v Westgate Insurance Co (formerly
Hodge General & Mercantile Co Ltd)
[1991] 2 A.C. 249; [1990] 3 W.L.R. 364; [1990] 2 All E.R. 947; [1990] 2 Lloyd's Rep. 377; (1990) 87(35) L.S.G. 36;
(1990) 140 N.L.J. 1074; (1990) 134 S.J. 1265
HL

Equitable Life Assurance Society v Ernst & Young

[2003] EWCA Civ 1114; [2003] 2 B.C.L.C. 603; [2004] P.N.L.R. 16; (2003) 100(38) L.S.G. 33; (2003) 147 S.J.L.B.
991; Times, September 10, 2003; Official Transcript
CA (Civ Div)

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Henderson v Merrett Syndicates Ltd (No.1)

[1995] 2 A.C. 145; [1994] 3 W.L.R. 761; [1994] 3 All E.R. 506; [1994] 2 Lloyd's Rep. 468; [1994] C.L.C. 918;
(1994) 144 N.L.J. 1204; Times, July 26, 1994; Independent, August 3, 1994
HL

Caparo Industries Plc v Dickman

[1990] 2 A.C. 605; [1990] 2 W.L.R. 358; [1990] 1 All E.R. 568; [1990] B.C.C. 164; [1990] B.C.L.C. 273; [1990]
E.C.C. 313; [1955-95] P.N.L.R. 523; (1990) 87(12) L.S.G. 42; (1990) 140 N.L.J. 248; (1990) 134 S.J. 494; Times,
February 12, 1990; Independent, February 16, 1990; Financial Times, February 13, 1990; Guardian, February 15,
1990; Daily Telegraph, February 15, 1990
HL

Livingstone v Rawyards Coal Co

(1879-80) L.R. 5 App. Cas. 25
HL

Doyle v Olby (Ironmongers) Ltd

[1969] 2 Q.B. 158; [1969] 2 W.L.R. 673; [1969] 2 All E.R. 119; (1969) 113 S.J. 128
CA (Civ Div)

Downs v Chappell
[1997] 1 W.L.R. 426; [1996] 3 All E.R. 344; [1996] C.L.C. 1492
CA (Civ Div)

Robinson v Harman
[1843-60] All E.R. Rep. 383; 154 E.R. 363; (1848) 1 Ex. 850
Ex Ct

Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd

[1995] Q.B. 375; [1995] 2 W.L.R. 607; [1995] 2 All E.R. 769; [1995] L.R.L.R. 195; [1996] 5 Bank. L.R. 64; [1995]
C.L.C. 410; 73 B.L.R. 47; [1995] E.C.C. 398; [1996] 5 Re. L.R. 23; [1995] 1 E.G.L.R. 129; [1995] 12 E.G. 144;
[1995] E.G. 31 (C.S.); (1995) 92(12) L.S.G. 34; (1995) 145 N.L.J. 343; (1995) 139 S.J.L.B. 56; [1995] N.P.C. 32;
(1995) 69 P. & C.R. D37; Times, February 21, 1995; Independent, February 24, 1995
CA (Civ Div)

Cases Citing This Case

Legislation cited

Companies Act 1985 (c.6)

Misrepresentation Act 1967 (c.7)

Public Notaries Act 1801 (c.79) s.1

Journal Articles

END OF DOCUMENT

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