With mass travel disruption and people who are only mildly unwell required to self-isolate, can the use of electronic signatures help?
The short answer is that in many cases it will be possible under English law to validly sign documents via electronic signature. However, it cannot be taken for granted that electronic signatures will be valid in another jurisdiction, so on any cross-border matter, local legal advice will be needed. And, even in the English law context, there are some documents and circumstances for which electronic signature will not or may not be suitable.
What is the English law position?
The English law position is that electronic signatures are valid. This was confirmed by the Law Commission in its report, "Electronic execution of documents" (published in 2019) and recently endorsed in a UK Government Ministerial Statement on 3 March 2020.
The Law Commission confirmed that an electronic signature is capable of being used to execute a document, including a deed, provided there is an intention to authenticate and any execution formalities are satisfied. There is no prescribed form under common law: for example, a name typed at the bottom of a document, and clicking the "I accept" box on a website, have both been recognised as valid signatures.
However, the Law Commission's view is that where there is a requirement for a deed to be signed "in the presence of a witness", the witness must be physically present.
There has been a lot of interest in the use of e-signing platforms, with many companies adopting this technology for use in-house and also wanting to use it on larger transactions with multiple parties. There are a number of issues to think about, not least ascertaining that the e-signing platform is secure. This is something that the organisation's IT department will need to assess carefully.
Some e-signing platforms do now offer functionality for witnessing of documents which require it. However, it is important to bear in mind that the person who is witnessing the execution of the document must actually see the signatory sign it and be physically present.
When will electronic signature not be appropriate?
It is impossible to provide a complete list, but here are some examples:
- where a wet ink signature is required for filing purposes;
- if the corporate seal is being used to execute the document;
- if there is a restriction on the use of electronic signatures in the constitutional documents of the executing company/other entity;
- if there are other restrictions under legislation or case law;
- if there are cross-border issues (as mentioned above).
There are many English law legislative provisions which require statements about particular matters to be verified by statutory declaration. A statutory declaration must be signed by the declarant and must be completed and signed by the person before whom the declaration is made. There is no provision for this to be done remotely, and electronic signatures do not assist. Statutory declarations are necessary to support an exclusion from a property arrangement of security provisions under the Landlord and Tenant Act 1954. If there is a chance that a company's usual solicitors are not available for such swearing, then thought needs to be given to trying to find alternatives.