On 4 September 2019, the Law Commission published a report on the electronic execution of documents. The report includes some high-level conclusions and recommendations:

  • 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 execution formalities are satisfied.

  • An electronic signature is admissible in evidence in legal proceedings. It is admissible, for example, to prove or disprove the identity of a signatory and/or the signatory's intention to authenticate the document.

  • Save where the contrary is provided for in relevant legislation or contractual arrangements, or where case law specific to the document in question leads to a contrary conclusion, the common law adopts a pragmatic approach and does not prescribe any particular form or type of signature.

  • In determining whether the method of signature adopted demonstrates an authenticating intention, the courts adopt an objective approach considering all of the surrounding circumstances. Examples are given of non-electronic forms that the courts have held to amount to valid signatures and it states that electronic equivalents of these non-electronic forms of signature are likely to be recognised by a court as legally valid. Examples are also given of electronic forms that the courts have held amount to valid signatures in the case of statutory obligations to provide a signature where the statute is silent as to whether an electronic signature is acceptable.

  • The requirement under the current law that a deed must be signed "in the presence of a witness" requires the physical presence of that witness to remain, even where both the person executing the deed and the witness are executing or attesting the document are using an electronic signature.

  • A working group to be established to consider practical issues relating to the electronic execution of documents, potential solutions to the obstacles to video witnessing of electronic signatures on deeds and attestation and legislative reform to allow for video witnessing.

  • It also recommends a future review of the law relating to deeds.

Please contact the commercial property team if you have any questions regarding the above article, commprop@prettys.co.uk.