The Law Commission has published a new report about the use and validity of electronic signatures on documents.
The report is the result of a law reform project started in 2018 to address uncertainty to the formalities around the electronic execution of documents. It was especially looking at documents and deeds where there is a statutory requirement that they must be “signed” and have requirements of witnessing and delivery.
The report does not apply to wills, which are the subject of another Law Commission project. Registered dispositions under the Land Registration Act 2002 are specifically excluded.
The conclusion of the report is that an electronic signature is capable in law of being used to execute a document (including a deed) provided that:
- the person signing the document intends to authenticate the document, and
- any formalities relating to the execution of that document, (such as that the signature be witnessed or be in a specified form e.g. handwritten) are satisfied.
- An electronic signature is admissible in evidence in legal proceedings, for example, to prove or disprove the identity of a signatory and/or their intention to authenticate the document.
- Unless the relevant legislation, contractual arrangements, or case law specific to the document provide otherwise, common law adopts a pragmatic approach and does not prescribe a particular form or type of signature.
- The Courts have held the following non-electronic forms amount to valid signatures and the law commission says that electronic equivalents are also likely to be recognised by a court as legally valid:
- signing with an ‘X' or a mark, even where the party executing the mark can write,
- signing with initials only,
- using a stamp of a handwritten signature or printing of a name,
- a description of the signatory if sufficiently clear, such as “Your loving mother”.
- For a deed to be valid it must be signed in the physical presence of a witness who attests the signature, even where both the person executing the deed and the witness are using an electronic signature.
The report also considers other issues to using electronic signatures, such as security. It advises that three key questions should be considered for any document, whether signed electronically or in wet ink. Users of electronic signatures should satisfy themselves that their process for dealing with signatures will provide sufficient evidence of the answers to the questions, especially if there is any dispute about the transaction.
- How can you be confident that person 'A' signed the document, and not another person pretending to be person 'A'?
- Does person 'A' have the capacity, and the requisite authority to sign the document, either for themselves or for their principal, usually a body corporate?
- What document is being signed?
The report contains some more specific guidance about signatures provided by particular bodies such as Companies House, the Land Registry and the Intellectual Property Office.
The office of the public guardian has confirmed to the law commission that they currently will not accept electronic signatures for lasting powers of attorney (LPAs) and have no plans to change this, however the government is setting up a review to be undertaken by the Law Commission into using electronic signatures in legal deeds, including LPAs.