Documents signed or executed with electronic signatures in English law
Introduction
Two papers prepared by a joint working party of the Law Society Company Law Committee and the City of London Law Company and Financial Law Committees,1 one with legal advice from Mark Hapgood QC, replicate what was already available (with the exception of a brief discussion of the conflicts of law) in previous editions of Paul Matthews and Hodge M. Malek, Disclosure2 and Stephen Mason, Electronic Signatures in Law3 (first edition in 2003) and the first three editions of Electronic Evidence (2007, 2010 and 2012).4 The text in this article is taken from the third edition of Electronic Evidence and up-dated. The text was removed for the fourth edition of Electronic Evidence and will not be replicated in subsequent editions. The reader might find comfort in the fact that the combined work of the lawyers involved with the two papers noted above coincide with the previous and current views of Chancery Master Paul Matthews, Hodge M. Malek QC and the author.
This article sets out the law and case law relating to ‘documents’ and related meanings in English law, including the use of electronic signatures. We are in the middle of a change in the way we communicate and exchange documents, as any law firm will appreciate – the legislation has been revised to accommodate the new reality, and although the larger law firms have been using bespoke software systems for some time to conduct business – mainly corporate work – nevertheless, the Law Society of England and Wales worked on the papers noted above after the practitioner texts had already dealt with the issues between them. The article begins by considering the meaning of ‘document’ and associated phrases used in English law, and then provides an outline of electronic signatures, discussing the practical issues that arise.
Section snippets
Document
The meaning of ‘document’ is set out in s 13 of the Civil Evidence Act 1995 as ‘anything in which information of any description is recorded.’ The same definition is provided in s 20D(3) of the Taxes Management Act 1970. This definition appears to include a very old form of document that of the tally stick. Tally sticks were made of wood, and they were used as receipts for money and other items, and as a record of an obligation to make a payment. The amounts were added to the tally by the use
Book or paper
Whether the meaning of ‘book or paper’ includes digital data was canvassed by the appellant in the case of R v Taylor (George Charles).40
Instrument
Of the references Professor Reed found when researching his book where the word ‘instrument’ was used in a statute, only one statute, s 8(1) of the Forgery and Counterfeiting Act 1981, specifically referred to digital information, whilst other definitions refer to ‘document’ which does not necessarily exclude digital information.43 The meaning given to the word
Writing
Writing is defined in Schedule 1 to the Interpretation Act 1978, and includes:
typing, printing, lithography, photography and other modes of representing or reproducing words in visible form, and expressions referring to writing are construed accordingly.
This definition emphasises the need for the writing to be in visible form, which appears to exclude information in electronic form, although microfilm and fiche are in writing, even though a machine is required to read the content recorded.
Record
The need to define a record is of relatively recent origin. In respect to the use of ‘record’ in statute, the majority of provisions bring information in electronic form within the ambit of a record, although a number of statutes may make assumptions that records are retained in hardcopy. The meaning of ‘record’ is discussed in relation to the admissibility of a body of evidence and the purpose for which the record has been made.57
Map
The question of whether a map that had undergone a digital transformation can be considered a map for the purposes of Schedule 14(1) of the Wildlife and Countryside Act 1981 was addressed in the case of Trail Riders Fellowship, R (on the application of) v Dorset County Council.59
Primary evidence
Where a document is created, signed and sealed solely in digital form, the primary evidence will be the data stored on the hard disk of the device or server. If it is necessary to adduce primary evidence of the document, a court should be satisfied that a copy, whether in electronic form or printed on paper, is a sufficient to prove the document in accordance with the provisions of s8(1)(b) of the Civil Evidence Act 1995.
Original document
In terms of electronic evidence, there is no concept of an ‘original’ .60
Requirement that an agreement or communication be in writing
Schedule 1 to the Interpretation Act 1978 has been amended to include, within the definition of writing ‘ … other modes of representing or reproducing words …’. This means documents in electronic form are included as ‘writing’ . When documents in electronic form are what might be termed ‘static’, in that they do not include any software that changes automatically when new text is entered, the ‘writing’ contained in the electronic document will comprise the content and the metadata. For
Signature
A manuscript signature placed on paper can be any mark in any form, including, but not limited to, a cross, initials, an identifying phrase and an abbreviation of a name. It is no different with an electronic signature. An electronic signature can take any form. Electronic signatures include the ‘I accept’ icon, a PIN, typing a name into an e-mail or word document, a scanned manuscript signature, a biodynamic signature and a digital signature.64 This is illustrated
Execution as a deed
As noted above, judges in England and Wales have consistently adopted an expansive approach to the definition of ‘writing’, ‘document’ and ‘signature’ – indeed, the concept of the signature is predicated on the function it performs, not the form it takes. It follows that a deed can be created and signed electronically, although affixing a seal to a deed might be considered problematic. A seal is an impression on paper, either by means of wax or shellac, but it can also be carried out by
Requirement for signing in the presence of a witness, where the witness is remote
The technology now available enables instantaneous conversations to take place across the globe at any time of the day. The technology also permits the discussion and manipulation of documents to take place simultaneously between many participants anywhere on earth. This means that it is possible for a person to witness a signature remotely. The case of Shah v Shah72 is instructive in this respect. In
Conclusion
It does not appear to date that complex electronic documents have been the subject of litigation. That is not to say that electronic documents are challenged because they are in electronic form. It is doubtful that any judge will willingly hear a spurious argument from counsel that asserts that documents in electronic form are not admissible. The legislation in place clearly provides for digital documents, although in practice, digital documents are not always accepted at present. Some examples
Author information
Stephen Mason is a barrister and the author of the open access book Electronic Signatures in Law (4th edition, Institute of Advanced Legal Studies for the SAS Humanities Digital Library, School of Advanced Study, University of London, 2016) http://ials.sas.ac.uk/digital/humanities-digital-library/observing-law-ials-open-book-service-law/electronic-signatures.
He is also the editor, with Daniel Seng, of the open access book Electronic Evidence (4th edition, Institute of Advanced Legal Studies for
Acknowledgement
The author thanks Hodge Malek QC of 39 Essex Chambers for reviewing this article.
The author has been appointed by the Law Commission to the advisory group for their project on electronic signatures and the electronic execution of documents.
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