THERE are many good and lawful reasons for backdating, post-dating or leaving documents undated. Take, for example, the minutes of an Annual General Meeting which are usually dated as of the date of the meeting even though they are confirmed and signed the following year.

Think about a post-dated cheque. There is nothing wrong with signing a post-dated cheque so long as you have the funds to cover on that future date. Your lawyer may recommend that you sign a contract and leave blank the date so that an “effective date”, as distinct from a “signing date”, might later be inserted. No fraud or forgery is committed in these specific circumstances. It’s not unusual, however, for businesspeople to want guidance on why, when and how to date.

Under our Forgery Act, a document that bears a date that differs from the actual date of its making will be considered to be a forgery if the actual date is somehow material. The date must be material in connection with the use that the person intends to make of the document. So, for example, the date that a certified copy of a birth certificate is signed and issued by the Registrar-General is, for most purposes, immaterial. It won’t affect the person’s age. Well, certainly not a man’s age.

It’s not necessarily a crime to backdate a document. Much depends on the nature of the document, the reason that the document was backdated and the consequences, if any, of the backdating on others. Whilst this article isn’t intended to be exhaustive, here are some things to consider.

We all make mistakes. Businesspeople will often backdate documents to fill gaps in the record or to correct administrative oversights. In most cases, the transactions in question are already concluded, openly and without controversy, and it is later discovered that an “i” wasn’t dotted or a “t” was left uncrossed. It may be the bank calling to say that a borrowing resolution needs to be re-done because of an error in the original. The banker usually won’t enquire whether a physical meeting occurred at all. But it’s recorded as having taken place on a certain date at a certain location and that’s certainly good enough for both parties. There is usually no intention to deceive anyone and the only benefit is the maintenance of good order and complete records.

The importance of one’s intentions is illustrated by an English case in which four employees who became aware that they were about to be made redundant contacted their former managing director, who had recently resigned from the company, to sign backdated letters setting out the revised terms of their employment. These revised terms had actually been agreed whilst the managing director was at the company but the person who ought to have prepared the amended job letters neglected to do so before the managing director resigned. The former managing director was of the belief that he was merely signing that which should have been signed whilst he was employed by the company. Without his knowledge, however, the four employees had dishonestly altered an attachment to the backdated letter so that they would receive more notice pay when they were made redundant than they were truly entitled to receive. On the basis of the backdated letters, together with the altered attachments, the company paid the additional sums to the four employees, but it sued the former managing director for damages. The court dismissed the claim as, even though he signed a backdated letter at a time when he had no authority to bind the company, he clearly didn’t have an intention to injure the company.

Compare that case to this scenario. An industrial relations consultant obviously neglected to file a complaint for unjustifiable dismissal with the Ministry of Labour within the one-year period prescribed by law. The letter was received by the Ministry some two weeks after the limitation period but the date on the face of the letter was eight weeks prior to receipt. In that case, it appeared that the consultant was surreptitiously seeking to obtain a benefit, whether for his client or himself or both, at the expense of the employer. It’s possible that the letter was not backdated but simply that it sat on the consultant’s desk for a while and/or was late in being delivered. At best, it was poor judgement on the part of the industrial relations consultant. At worst, there was an intention to deceive the Minister of Labour and deprive the employer of its defence to the claim.

Consider one more case. Over 50 years ago, two men in England were charged for obtaining a lorry on hire-purchase from a dealer “by virtue of a forged instrument”. Instead of applying for credit in their own names, they used another man’s good name, without his permission, on the hire-purchase proposal form. The accused men said, however, that the dealer could not have relied on the proposal form as they had received the lorry from the dealer the day before submitting the false document. In other words, whatever may have led the dealer to hand over the lorry, it was definitely not the forged document as it did not exist at the material time. The dealer, on the other hand, couldn’t confirm when the lorry was delivered but said that it was their standard practice to wait until the proposal form was received. The judge directed the jury that if they believed that the delivery of the lorry preceded the forged instrument then the men would not have been guilty of obtaining property “by virtue of” the forged proposal form. It doesn’t take a high-priced lawyer to deduce that if a document doesn’t exist as of the date that property changes hands, then the property would have changed hands in spite of the backdated document and not because of it. As it turned out, the jury in this case convicted the men because they believed that the dealer’s system was such that it was highly unlikely that the lorry would have been delivered before the proposal form was signed. This case highlights the importance of having proper corporate policies and controls in place and why, if you don’t, it may be unwise to accuse others of fraud.

Knowing when to date a document is an important decision. Based on the risks involved, you will never get some businesspeople to commit. Even if they don’t get it right on the first date, once their intentions are honourable, it may be possible to correct any errors. It’s always a good idea, however, to set a date with your attorney to discuss the matter beforehand.

Gavin Goffe is a Partner at Myers, Fletcher & Gordon and a member of the Firm’s Litigation Department and Labour Law Practice Group. Gavin may be contacted at gavin.goffe@mfg.com.jm or through https://www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.