S6.11 Legal Writings (Counterparts and Delivery) (Scotland) Act 2015

General

On 1 July 2015, the Legal Writings (Counterparts and Delivery) (Scotland) Act 2015 came into force. The terms of this act mean that documents may be executed in counterpart, and this includes documents that can be recorded in the Register of Sasines. External guidance asks applicants to disclose that a document has been executed in this way, but an application should not be returned to an agent if this is not the case.

What is execution in counterpart?

Execution of a document in counterpart means that, instead of all the parties to the deed signing the same copy of a document, the parties sign duplicate versions. The duplicate versions of the document are called counterparts, hence "execution in counterpart". However, each party to the document does not have to sign a separate counterpart; two parties could sign one counterpart, and a third party could sign another counterpart.

For example, Mr White, Dr Scarlett and Mrs Orange enter into an agreement, and they decide to execute the agreement in counterpart. This could take the following forms:

Mr White, Dr Scarlett and Mrs Orange all sign separate counterparts, three in total.
Mr White and Dr Scarlett both sign the same counterpart. Mrs Orange signs another counterpart, so there are two counterparts in total.

Either style 1 or 2 above is acceptable. However, if all the parties to a document sign the same copy of the deed, then this is not execution in counterpart.

What implications does the 2015 Act have for recording requirements?

A document executed in counterpart can be accepted in the Register of Sasines if it satisfies all other existing recording requirements. The 2015 Act does not amend the Requirements of Writing (Scotland) Act 1995, so the same standards that apply to all applications for recording also apply to applications for recording of documents executed in counterpart, including subscription.

This means that, even if executed in counterpart, a deed presented for recording will still have to be witnessed. However, in line with standard practice, registration officers will check this. With documents executed in counterpart, subscription may have to be checked across two or more duplicate versions of the same deed, or across multiple subscription pages. For the avoidance of doubt, the witnessing should be on the counterpart as that of the subscription that is being witnessed. However, the key requirements that should be checked remain the same, and these are outlined elsewhere in section 6 (Execution of Writs).

The 2015 Act does not contain provisions relating to testing clauses in a document executed in counterpart. Accordingly, there is no requirement for a testing clause in a document executed in counterpart to state that execution has been performed in this way. In any event testing clauses are a convenient means of adding to a deed details of its execution, but are not a statutory requirement. Therefore, it is possible (but not required) for a testing clause in this type of document to state that the document has been executed in counterpart. It is also acceptable for the way in which the witness name and designation is shown across a series of counterparts to vary: these details may be disclosed in a testing clause or other acceptable ways.

The 1995 Act states that there are certain exceptions to the general rule that a document must be in self-evidencing form in order to be recordable. These exceptions include various court decrees, wills, and documents where there is an enactment requiring or permitting recording despite the fact that document is not in self-proving forms. Typically, these exception documents would not usually be granted by more than one person, so it is not anticipated that the Keeper will receive applications to record documents that have been executed in counterpart that can be categorised as document to which the requirement to be in self-evidencing form does not apply. However, in cases of doubt, the application should be referred through the usual channels.

There is also no change to the requirement for a document to contain a clause of consent to registration for preservation and execution, if an applicant wishes to register a document for this purpose. A document executed in counterpart that is to be registered for execution must contain this clause.

What will a document executed in counterpart look like?

The Act states that when counterparts are executed, they are to be treated as if they are a single document. This single document can be comprised of:

(A). All the counterparts, including the signed pages (i.e. two or more copies of identical deeds each with subscription pages); or

(B). One counterpart in its entirety, collated with the page or pages from the other counterparts which have been signed (i.e. one full copy with just the subscribed pages from the other copies).

For registration and recording purposes, the Keeper's policy is to ask applicants to submit documents executed in counterpart in a "single document" format that conforms to one of these styles. Staff should not try to make up a single document themselves if an applicant submits a bundle of paperwork that does not seem to conform to one of these styles.

For example, the "single document" version of an agreement executed in counterpart in style (A) above by Mr Pink, Mr Blue and Ms Green could be either:

The counterpart signed by Mr Pink, the counterpart signed by Mr Blue and the counterpart signed by Ms Green;

OR

If two parties have executed the same counterpart, the counterpart signed by Mr Pink and Mr Blue in its entirety, and the counterpart signed by Ms Green in its entirety.

If the execution in counterpart was in style (B), the "single document" could be take one of the following forms:

The counterpart signed by Mr Pink in its entirety, collated with the executed pages from the two counterparts signed by Mr Blue and Ms Green.

OR

If two parties have executed the same counterpart, the counterpart signed by Mr Pink and Mr Blue in its entirety, collated with the signed page from the counterpart executed by Ms Green

OR

Again, if two parties have executed the same counterpart, the counterpart signed by Ms Green in its entirety, collated with the signed page from the single counterpart executed by Mr Pink and Mr Blue.

The Keeper takes the view that, for the purposes of recording, it is appropriate for the treatment of a document executed in counterpart as a single document to include the way in which it is submitted for registration. Accordingly, an application for registration of a document executed in counterpart should contain a "single document" that conforms to one of the two styles listed above. In turn, this will permit the Keeper to treat the deed as a single document for the purposes of registration. As described above, there are two styles of single document, but the Keeper is encouraging applicants to submit documents in style (B).

Documents executed in counterpart must be duplicate and interchangeable. However, registration officers will not have to confirm that this is the case: it is the agent's responsibility to make sure that all the counterparts are indeed duplicate and interchangeable.

To summarise, the 2015 Act does not make any changes to the requirements for recording. What it does do is clarify that it is acceptable, in Scots law, for a document to be executed in counterpart. This means that it may be necessary to check (i) the subscription pages of multiple versions of the same document or (ii) multiple copies of the subscription page of a document in order to determine if these requirements have been met.

Annexations

Section 8 of the 1995 Act contains provision for the incorporation of annexations into document. Where a document relates to land, it should be signed on the last page (where it is an inventory, appendix, schedule or other writing), or on each page (where it is a plan, drawing, photograph or other representation).

Where a document executed in counterpart that is presented for recording contains annexations, the Keeper is encouraging applicants to submit the deed as a single document in style (B) as described above. However, the terms of the 2015 Act mean that pages from a document executed in counterpart that have been subscribed (meaning signed at the bottom but not witnessed) must be collated when this type of single document is used. Therefore, for style (B) single documents, the Keeper takes the view that the annexations must be subscribed rather than signed. In this scenario, the single document would take the following form:

(i) A single counterpart in its entirety, with the subscribed pages from the other counterpart or counterparts and the subscribed pages from the other annexation or annexations.

There is a further possibility for style (B) documents with an annexation. This will arise if a single version of an annexation to a main document is signed by all the parties. This might happen if there is a signing ceremony attended by all the parties to the deed, or if the annexation is sent round all the parties to be signed. However, it may be that the Keeper receives few applications that involve an annexation signed in this way, as signing ceremonies and round-robin signing might result in the loss of the benefits of execution in counterpart. However, if an annexation has been signed in this way, a style (B) deed should be presented for registration in the following form:

(ii) A single counterpart in its entirety, plus the subscription pages from the other counterpart or counterparts and a single set of annexations signed by all the parties.

While the Keeper is encouraging applicants to submit style (B) single documents in form (i) above, the terms of the 2015 Act mean that style (A) single documents can also be accepted. This is because the terms of the 2015 Act appears to continue to allow annexations to be signed in the usual way. Style (A) single documents could take one of two forms, the first of which is:

(iii) Both or all the counterparts, including the annexations to each separate counterpart with every necessary page of the annexation or annexations signed.

The second Style (A) form arises because of the possibility of a single version of the annexations being signed by all the parties. Such a single document would be in the following form:

(iv) Both or all the counterparts in their entirety, including the single version of the annexations signed by all the parties.

The Keeper is encouraging applications in line with form (i) listed above. If a registration officer receives an application to register a document executed in counterpart with annexations that does not fall into one of the possibilities listed above, the application should be referred to the Registration Practice Team.

Referrals

Other than annexation-related referrals as described above, questions about documents executed in counterpart should be referred by the registration officer to his or her immediate referral officer in the first instance. Beyond this, the referral officer can refer the application to the Registration Practice Team as appropriate.