Can You Sign A Witness Statement, Or Other Legal Documents, Electronically?
Posted on 27th March 2020
One of the most fundamental legal concepts is that to agree with something and to later have no dispute about the terms of the agreement, it must be signed. This is how we agree to most things of any note and in particular, anything legally binding such as contracts, financial applications, wills and witness statements.
In an age of electronic and online technology, where is the line drawn?
It is entirely common to apply for financial products, including mortgages and loans online, simply placing a tick or typing your name into a box. Many other, minor documents can also be agreed online, indeed, solicitors exchange emails with each other and to some degree, the Court, where only a decade ago, a letter would be typed, printed, signed and either faxed or posted.
So, MG Legal, your solicitors in Lancaster, have asked and tried to answer where is the line drawn with regards to legal documents, generally those requiring a statement of truth? The answer is that some areas have now been confirmed as being acceptable for electronic signature, others are awaiting confirmation, which can only truly come where this is tested in one of the higher courts.
Problems can arise because it is, of course, easier to forge an electronic signature, as well as for online fraudsters to access documents and submit electronic applications online. There have also been occasions when a party has been presented with an electronically signed statement and subsequently denied it was the document they signed. Whilst a signature can be forged, it is harder to do so than an e-signature.
What can be signed electronically?
The Lord Chancellor recently confirmed that deeds can be signed electronically, including those needing witnesses, as long as the witness is physically present at the time of the signature. This has paved the way for wills and other more traditional documents to be signed electronically.
This has recently been taken further with so-called “e-witnesses” being able to witness a signature via webcam or similar technology. Basically, anything that is a standard commercial or consumer contract can be signed, as well as certain legal documents.
What cannot be signed electronically?
MG Legal, your solicitors Lancaster, do not wish to take any chances and so we have ensured we are up to date with changing trends and what the highest legal authorities, including the Lord Chancellor, the High Court and those above it are saying.
The Land Registry and HMRC still insists that certain documents are filed in the traditional “pen on paper” signature. Statutory Declarations are also required to be made in the traditional manner as the Declaration is said to be “made” by the declarant in the presence of a qualified person rather than simply being a document signed in agreement. Documents signed between foreign parties are also best kept in hard copy hand signed form as the same principles in each country may conflict with the other jurisdiction, rendering a contract void.
The grey area between the two
It is considered unwise to mix types of signature, so if one party signs by hand, the other should also do so. Having an electronic signature and a hand signature at either end means the same document cannot have an “audit trail” as the two can never meet. This mixed signature approach has not yet been tested by the Court and so, unless you wish to take the risk of being a ground-breaking pioneer, but potentially losing your case on the grounds of an unenforceable contract, the cost of a pen, sheet of paper, stamp and envelope is probably a worthwhile expenditure.
Witness Statements are the biggest current issue, with a preliminary test being given at Liverpool County Court in the case of Fitzpatrick v AIG Europe Ltd. District Judge Jenkinson heard arguments from both parties about the admissibility of an electronically signed witness statement by the Claimant.
The Defendant argued the electronically signed statement was not sufficient and so the witness statement was invalid because of the requirement of the Civil Procedure Rules CPR 32.4 “a witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally” saying that because it was not “signed by a person” it was not compliant.
District Judge Jenkinson considered various parts of the Civil Procedure Rules and decided that the electronic signature was valid as it was not specifically prohibited, making the witness statement valid.
The decision, being made at County Court level, does not “set a precedent” and the Judge himself expressed surprise that, in 2015, the question had not been posed to a higher Court.
Should I sign electronically?
In most cases, probably yes, provided you agree with what you are signing. However as MG Legal, your solicitors Lancaster have often found, each District Judge has their own opinion and as there is currently no guiding decision from the High Court, Court of Appeal or Supreme Court, it would be wise not to electronically sign your witness statement. Should a Judge decide, on the day of Trial, that they disagree with DJ Jenkinson and that your witness statement is invalid, the Trial would be at best adjourned and at worst the claim struck out. Applications to restore the case and potentially to rectify the situation are expensive and there is no guarantee of success.
We believe that, as stated above, the cost of a sheet of paper, envelope and a pen is well worth the certainty that the witness statement will be accepted and that it has your own signature on it.
Should I seek legal advice?
MG Legal, your solicitors Lancaster, specialise in a number of areas where we strongly recommend you seek advice prior to drafting or signing a document. We offer a comprehensive service around Wills, Powers of Attorney, Deputyships and Probate matters, as well as dedicated teams for Property sales, purchases and transfers, Family and Children matters and Personal Injury claims.
If in doubt, please contact MG Legal at any of our offices in Lancaster, Garstang or Longridge and we will be happy to put you in touch with the right member of the team. In most cases, we will have the ball rolling the same day or have an appointment set for you to speak in full about your individual requirements and the best way for us to help you.
We offer most services on a fixed fee basis and any personal injury matter is accepted on the basis of a Conditional Fee Agreement (no win, no fee agreement). Call MG Legal today and our friendly, professional team we will get the ball rolling straight away.
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