27th September 2016
We are frequently asked what is and what is not permissible in terms of electronic signature of documents. The law is not as straightforward in this area as it might be – we summarised the position recently in this article. To assist practitioners and clients alike, the Law Society, in conjunction with the City of London Law Society Company Law and Financial Law Committees, has now published a best practice note.
The practice note is concerned with contracts entered into in a business context rather than with consumers or private individuals.
The following are listed as examples of an electronic signature:
As there is usually no statutory requirement regarding the execution of simple contracts, the practice note says that a simple contract may be concluded using an electronic signature.
Under section 46 of the Companies Act 2006 a document is validly executed as a deed if, and only if, it is duly executed by the company and delivered as a deed. According to the practice note:
Under section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989 an instrument is validly executed as a deed by an individual if it is signed by him or her in the presence of a witness who attests the signature. Section 44 of the Companies Act provides that a document can be validly executed by a company if it is signed on behalf of a company by a director in the presence of a witness who attests the signature. The practice note says that where a signatory signs, including electronically, and a witness has sight of this, and the witness signs the attestation clause, including by electronic signature, the deed will have been validly executed. The practice note states that to minimise the evidentiary risk it is preferable for the witness to be physically present when the signatory signs rather than witnessing through a live televisual medium.
The practice note states that directors of a company that has adopted the Model Articles or Table A articles may pass a directors’ resolution by the relevant directors signing a resolution using an electronic signature.
Minutes of the proceedings of a general meeting that are signed by the chairman using an electronic signature will constitute evidence of the proceedings and a record of a resolution passed otherwise than at general meeting that is signed by a director or the company secretary using an electronic signature will constitute evidence of the passing of that resolution.
Members’ written resolutions may be signed electronically but, to satisfy the authentication requirements of section 1146 of the Companies Act 2006, must be confirmed in a manner specified by the company. Where no such manner has been specified by the company, the communication must contain or be accompanied by a statement of the identity of the sender and the company must have no reason to doubt the truth of that statement.
The practice note says that where an electronic signature is challenged the courts should adopt the same approach as they do where a “wet ink” signature is challenged. In other words, the document bearing the electronic signature would be accepted as prima facie evidence that the document was authentic unless evidence was adduced to the contrary.
It is possible – albeit extremely unlikely – that a company’s articles of association, or subsequent resolutions, prohibit electronic signatures. Assuming that the articles are silent on the question of electronic signature, there is no need for any resolution or minute authorising electronic, as opposed to wet ink, signatures.
Unless there is a legal requirement to the contrary, it is possible to have originals of the same document in both hard copy and electronic form. Where a document has been executed electronically, there is no need for an additional wet ink version to be created. Where a document has been executed using a combination of electronic and wet ink versions, a composite version may be created, and this will be accepted by the English courts. If an original version of a document executed electronically is required to be produced in evidence, the court will accept an electronic version or a hard copy print out.
Where an undated document is executed electronically, it may be validly dated with the authority of the parties by inserting the date electronically or by printing it out and inserting the date by hand.
Where a document has been executed electronically with each signatory applying their signature to the same file uploaded to the relevant signature platform, this will be treated as one counterpart.
The practice note states that documents executed electronically can be amended in wet ink and, conversely, wet ink documents can be amended electronically.
Where the governing law of the contract is not English law, the validity of electronic signatures will fall to be determined in accordance with the contract’s applicable law.
If an overseas company executes a contract governed by English law using an electronic signature, provided that the signatory is acting under the authority of the company, that contract will have been validly executed as a matter of English law. Questions as to the authority of the signatory should, however, be referred to overseas counsel for an opinion.
Occasionally, the place of execution by the signatory may have legal consequences. In view of the difficulties of establishing where this is – relevant considerations include the physical location of the signatory and the location of the server – it may be prudent in these cases to use a wet ink signature.
The practice note observes that the Land Registry and Land Charges Registry require a wet ink signature on paper documents submitted to them for registration and also that where stamp duty is payable, HMRC will ordinarily expect a wet ink signature.
Where a party wishes to execute a deed by the physical affixing of its common seal, it is unlikely to be able to do this electronically.