MUKESH SHAH v (1) PANACHAND SHAH (2) DIPAK SHAH (2001)

[Donald ramsbottom]

Just to muddy the signature debate further, here is a case on sigs and
statutes and "policy". From Lawtel, as ever ignore if you don't like law.





MUKESH SHAH v (1) PANACHAND SHAH (2) DIPAK SHAH (2001) 

Court:
CA (Pill LJ, Tuckey LJ, Sir Christopher Slade) 10/4/2001 

Subject:
CONTRACT - ESTOPPEL 

Descriptors:
DEEDS : EXECUTION : FORMALITIES : WITNESSES : ATTESTATION : SIGNATURE OF
ATTESTING 
WITNESS ADDED AFTER EXECUTION : S.1 LAW OF PROPERTY (MISCELLANEOUS PROVISIONS 
) ACT 1989 : LEGISLATIVE INTENTION : NATURE OF ENACTMENT : SOCIAL POLICY 

Summary:
In laying down a requirement by way of attestation in s.1 Law of Property
(Miscellaneous 
Provisions) Act 1989, Parliament had not excluded the possibility that an
estoppel 
could be raised to prevent the signatory of a deed relying upon the need for 
the formalities required by the section. 

Text:
Appeal by the third and fourth defendants ('the defendants') from an order 
of HH Judge Crawford QC, by which he gave judgment for the claimant against 
the defendants, jointly and severally, in the sum of 1.5 million together 
with interest. In 1998 the claimant ('M') was induced by the defendants to 
invest 1.5 million in a Kenyan bank ('the Bank') of which they were senior 
officers. Later that year the Bank collapsed in circumstances where it was 
unable to repay any part of M's investment. In fact, no trace of his money 
could be found in the Bank's records. In 1999 the defendants agreed to
execute 
a document headed "Deed" under which they accepted personal liability for
repayment 
of M's money. That document had been prepared by M's solicitor ('S') and
provided 
for the defendants to execute it "as a deed...in the presence of" an
attesting 
witness. The defendants took the document away with them for signature and 
having signed it they passed it on to an attesting witness, who had not seen 
the defendants sign, for signature by him. The document was then returned to 
S. The defendants contended that the "deed" was not enforceable as such since 
the formalities for its execution, as laid down by s.1 Law of Property
(Miscellaneous Provisions) Act 1989
 had not been complied with. The judge held that the document had been put 
forward by the defendants as a valid deed in the knowledge that it was
intended 
to be relied upon and with the intention of being bound by it, such that they 
were estopped from asserting its formal invalidity. The defendants appealed, 
contending that there was a principle of general application that a party
could 
not rely upon an estoppel in the face of a statute. 

HELD: (1) The true rule was that the general principle upon which the
defendants 
sought to rely depended on "the nature of the enactment, the purpose of the 
provision and the social policy behind it", per Beldam LJ in Yaxley v Gotts
(2000)
 1 AER 711. (2) There were policy reasons for not permitting a party to
escape 
his obligations under the deed by reason of a defect, however minor, in the 
way his signature was attested. (3) The court was satisfied that there was 
no statutory intention to exclude the operation of an estoppel in all
circumstances 
or in the circumstances of the present case. Attestation was at one stage
removed 
from the imperative out of which the need for formality arose. 

Appeal dismissed. 



Donald Ramsbottom BA LLb (Hons) PGdip
Ramsbottom & Co Solicitors
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