A High Court ruling has clarified that an unwitnessed partnership agreement does not qualify as a deed, preventing a general partner from using its power of attorney to bind a limited partner to a new agreement in the Cayman Islands.
In the case of 3Kings Holdings Ltd v TCF 1 GP Ltd [2026] EWHC 2620 (BP), His Honour Judge Paul Matthews determined that the absence of a witness’s signature invalidated the execution of the agreement as a deed.
Background and Dispute
The defendant, a general partner of a private fund limited partnership established in 2020, executed a Cayman Islands agreement in August 2023. They claimed this agreement bound all limited partners through a power of attorney clause in the original English agreement.
The claimant, a Maltese company that joined the partnership in 2022, argued that the power of attorney was invalid because the English agreement was not executed as a deed, as required by the Powers of Attorney Act 1971.
Legal Analysis and Decision
Judge Matthews noted that while the agreement stated the parties intended to execute it as a deed, the director’s signature was not witnessed, as mandated by section 44(2)(b) of the Companies Act 2006. The defendant argued that the witness’s presence alone was sufficient, but he disagreed.
After reviewing historical authorities, including the Statute of Frauds 1677 and the case of Euro Securities & Finance Ltd v Barrett, the judge concluded that “attest” requires the witness to sign the document. This interpretation aligns with the Law Commission’s 1987 report and the ruling in Briggs v Gleeds.
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He also rejected the defendant’s arguments regarding estoppel and the operation of a defective deed as a simple contract. The judge emphasized that a written contract alone is insufficient to confer authority.
Implications for the Partnership
The judge found that the Cayman Islands agreement did not meet the requirements of clause 26, which limited the power of attorney to documents necessary for reorganizing or re-filing the partnership under local law. No evidence was provided to show that the new agreement was required under Cayman law.
Furthermore, the general partner signed the Cayman agreement in its own capacity, not as attorney for the limited partners, as required by clause 26.4. Judge Matthews highlighted that changing the governing law and forum would materially alter partners’ rights, which the agreement explicitly prohibited, likening it to “moving the goalposts after the ball has been kicked.”
Notice was not prompt either, the earliest contacts coming months after execution.
Estoppel and Re-Execution Considerations
The judge ruled that estoppel did not apply, as the document lacked the appearance of a valid deed, following Briggs v Gleeds and distinguishing Shah v Shah. A re-execution in March 2026 occurred after the claim was issued in October 2025, making it ineffective under Mohammed v Bank of Kuwait, which judges jurisdiction at the time of issue.
