Notary Public vs Commissioner for Oaths in Ireland

Further reading from this practice: Blockchain and Irish Law. For Hugh's background and qualifications, see Hugh Phelan.

The question arrives by email at least once a week, usually from someone whose document has just been rejected by a foreign authority. The client engaged a Commissioner for Oaths in Cork, paid the fee, swore the affidavit, posted the document to the receiving country, and was told the document would not be accepted. The receiving authority wanted a Notary Public.

The two offices are not the same. They are not interchangeable. The fee structures, the appointment processes, the international recognition, and the substance of the act are different. This note sets out the difference and the practical consequence.

The Commissioner for Oaths

A Commissioner for Oaths is appointed by the Chief Justice under section 72 of the Supreme Court of Judicature (Ireland) Act 1877, as supplemented by the Commissioners for Oaths Act 1889 and subsequent provisions. The appointment is administrative and the function is domestic. A Commissioner administers oaths and affirmations, takes declarations, and witnesses signatures on affidavits intended for use in Irish proceedings or for Irish administrative purposes.

The Commissioner's authority is not designed to travel. The Commissioner's certificate is not on the Hague Convention list of authorities whose signatures may be apostilled. The Department of Foreign Affairs will not apostille a Commissioner's signature directly. A foreign authority that asks for a notarised document is not asking for a Commissioner's affidavit, even though the document looks similar at first glance.

Most practising solicitors in Ireland are Commissioners for Oaths, and the office is treated as part of the ordinary solicitor's authority. Fees are statutory and modest — typically a few euro per oath. The work is fast and the bar to becoming a Commissioner is low. None of this is a criticism. The office is designed for domestic use and serves that purpose well.

The Notary Public

A Notary Public is a separately appointed public officer. The appointment is for life, requires the Diploma in Notarial Law and Practice from the Faculty of Notaries Public Ireland, and is granted by the Chief Justice on petition. The Notary's authority is recognised internationally under the Hague Convention of 1961, and the Notary's signature and seal are on the list maintained by the Department of Foreign Affairs for apostille.

The Notary's function is also broader. Where the Commissioner is essentially limited to administering oaths and taking declarations, the Notary authenticates documents, certifies copies, draws and protests bills of exchange, and performs the full range of notarial acts recognised in international practice. The fees are not statutory; they are charged on a scale that reflects the work involved, the urgency, and the complexity of the matter.

For an introduction to the Notary's office and the appointment process, my note on what a Notary Public in Cork actually does sets out the function in full.

The test: where is the document going?

The decision between the two offices is determined by the destination of the document. If the document is going to an Irish court, an Irish government department, an Irish bank, or an Irish public office, a Commissioner for Oaths is appropriate and a Notary is not necessary. If the document is going outside Ireland — to a foreign court, a foreign government department, a foreign bank, a foreign property registry, a foreign embassy — a Notary Public is almost always required.

The exceptions are narrow. A handful of countries have specific bilateral arrangements with Ireland that accept domestic certifications for specific document types. The United Kingdom accepts an Irish solicitor's certificate for a small number of property and probate matters. The United States generally requires notarisation regardless of the document type. Continental European authorities almost always require notarisation followed by apostille. The Middle East, sub-Saharan Africa, and most of Asia require notarisation followed by apostille or, for non-Hague states, a chain of legalisation through the relevant embassy.

If you are unsure, the practical rule is: ask the receiving authority in writing what they require. The answer is usually unambiguous, and a one-line email to the foreign solicitor, registrar or government department avoids the costlier route of guessing wrong.

The cost of getting it wrong

The cost of using a Commissioner where a Notary is required is not the Commissioner's fee. It is the time and expense of starting over: a fresh appointment, a fresh document, a fresh signature, a fresh apostille, and a fresh international courier. For a document on a closing deadline, that delay is sometimes the difference between a transaction completing and a transaction collapsing.

The reverse mistake — using a Notary where a Commissioner would suffice — is harmless. The Notary's certificate is accepted by any Irish authority that would have accepted a Commissioner's. The fee is higher than a Commissioner's, but the document is good. Overpaying for authentication is rarely catastrophic; underpaying with the wrong office is.

A few cases where the line is less obvious

Foreign nationals in Ireland. A Polish citizen living in Cork who needs to send a document to a Polish authority needs a Notary. A Polish citizen in the same position who needs to swear an affidavit for the Irish Workplace Relations Commission needs a Commissioner. The nationality of the signatory is not the test; the destination of the document is.

Statutory declarations. The Statutory Declarations Act 1938 allows declarations to be made before either a Commissioner for Oaths or a Notary Public for domestic purposes. For foreign use, only the Notary's declaration travels.

Affidavits in international proceedings. An affidavit sworn for use in foreign legal proceedings should always be sworn before a Notary, and the Notary's signature should be apostilled. A Commissioner's affidavit is not accepted by most foreign courts and the apostille route is closed.

Certified copies. A copy of a passport or company document certified by a solicitor (acting as such) is often acceptable for domestic purposes. For foreign banks, registrars and authorities, a Notary's certified copy is the standard and the only authentication that will pass apostille.

The booking decision

If you are reading this because a foreign counterparty has asked for a notarised document, book a Notary directly and skip the Commissioner step entirely. The Notary's certificate is sufficient for domestic and foreign use. If you are reading this because an Irish authority has asked for a sworn declaration, a Commissioner for Oaths in any solicitor's office in Cork will satisfy the requirement. If you are unsure, send the document to a Notary by email in advance of the appointment and they will tell you which office is needed.

For the apostille step that follows notarisation, the practical detail is set out in the apostille process in Cork. To book a notarial appointment with Hugh Phelan, call (021) 489-7134 or visit phelansolicitors.com.