Electronic signatures – no need for a “wet ink” signature?
UPDATE: IBB Solicitors has contacted the Law Society, who have confirmed that they do not currently advise professionals to use video calling to swear a statutory declaration or witness a document, as the law indicates that there must be a physical presence. The Law Society are awaiting further guidance from the SRA and the MoJ in these uncertain times, and we will of course update you as we receive more information.
Another potential problem is the way in which swear fees are being paid. Under section 2 of the Commission for Oaths (Fees) Order 1993, the swear “shall be charged by” the solicitor swearing the oath. Many solicitors have recommended to individuals that their fee should be donated to charity. This is a gesture IBB wholeheartedly agrees with but, in suggesting that the fees are paid directly to a charity, it is likely that professionals are not, strictly speaking, charging this fee. We would therefore suggest (and will practice the same) that professionals accept the fee from the individual and then donate this fee to charity, thereby ensuring that both section 2 of the 1993 order is satisfied and a local charity benefits in this time of need.
The Law Commission has recently clarified the validity of electronic signatures – even statutory requirements for a signature which predate computers can be satisfied by a digital version of a signature. Charlotte Newlyn, a Solicitor in IBB’s Corporate and Commercial team, looks at the Law Commission’s advice and how far it may reach.
We are all becoming more used to seeing a – sometimes slightly pixelated – copy of a sender’s signature at the bottom of letters or documents, but until now it was unclear just what legal force these digital signatures held.
Law Commission’s advice
The advice came as a result of a study of statute, common and case law surrounding the use of electronic execution of documents and the legality and validity of such methods.
In short, digital signatures on all documents, including deeds, will be held to be valid, provided that the signatory intended to sign the relevant document and that all further requirements are satisfied, such as witnessing.
In light of the above advice, some have begun to wonder about the other possibilities technology provides, such a remote witnessing.
The Law Commission have, however, curbed any such expectations by confirming that “our view is that the requirement… is that a deed which must be signed “in the presence of a witness” requires the physical presence of that witness”.
Despite this significant step in the execution of documents and deeds, the Law Commission has made it abundantly clear that all other requirements regarding the execution of the specific document or deed must be met in order for the electronic signature to be valid, including having an appropriate witness present when you electronically sign the document, for example.
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