England's Law Commission reports on e-signatures – a missed opportunity?

This month, the Law Commission published its report on electronic execution of documents in England and Wales (the Report), following its consultation of August 2018 (the Consultation).  Though the Report provides useful confirmation of the English law position on e-signatures (see our Transactions Blog for commentary), both it and the Consultation leave some important questions unanswered.  To that end, the Law Commission’s failure to address fully the ramifications of e-signatures in civil litigation is something of a missed opportunity.

There are two areas where e-signatures might be relevant in a litigation context:

1. the admissibility or evidential weight of a document that has been (purportedly) signed electronically; and
2. documents that are part of the litigation process (such as claim forms or witness statements) requiring a signature.

The Report addresses (1), but does not consider (2).  The Law Commission says its recommendations are of broad application, given that statute and case law do not generally distinguish between types of situation in which e-signatures may be used.  There are however cases touching specifically on whether e-signatures can be used to sign court documents, and so guidance from the Law Commission on this point would have been welcome.

The starting point under the Civil Procedure Rules (CPR) is Rule 5.3: “Where any of these Rules or any practice direction requires a document to be signed, that requirement shall be satisfied if the signature is printed by computer or other mechanical means”.  It is not always clear how this rule interacts with others, such as Rule 32.4(1) in relation to witness statements, which are defined as “written statement[s] signed by a person …” (emphasis added).  There is authority that a person appending their electronic signature to the statement of truth would satisfy this requirement (see Fitzpatrick v AIG Europe Ltd, (unreported), 1 July 2015).  However, the Birmingham County Court has recently held that ticking a box on an online claim form was insufficient to constitute signature of a statement of truth (Kassam v Gill and another (unreported), 13 August 2018).  Given the Law Commission’s ‘technology neutral’ approach and adoption of a broad definition of ‘electronic signature’ (see paras 2.20 – 2.21), clarity on this issue would have been welcome.

A further area of uncertainty concerns the interaction between Rule 5.3 and Practice Direction 51O para 4, which requires the signed original of any document filed electronically to be preserved and made available for inspection.  How does a litigant comply with its PD51O obligations where there is no wet ink hard copy? 

Ultimately, the Civil Procedure Rule Committee is responsible for ensuring coherence of the CPR and there may be issues here for the Lacuna Sub-Committee to consider.  But litigators may justifiably feel disappointed that the Law Commission’s Report does not engage with these questions.