The report of the Law Commission in September 2019 addressed the question of electronic signatures, confirming that electronic signatures can be used to execute documents, including deeds. See our briefing on the report. The Law Commission also stated its current view that the requirement for a deed to be signed “in the presence of a witness” means that the witness must be physically present.
Witnessing via, for example, video link is not currently recommended. In the case of either wet ink or electronic signatures, the law for execution of deeds is the same: the witness must attest the signature (which means that he or she must be present and see the signatory sign the deed, and then apply his own signature to confirm that). But must the signatory see the witness sign the document? That was one of the questions considered in a recent case (Wood v Commercial First Business Ltd (in liquidation) (2019) EWHC 2205 (Ch))
A borrower brought multiple claims against a mortgage lender and its assignees, seeking to set aside two commercial mortgages. Amongst other claims, the borrower argued that the documentation for the first mortgage had not been duly attested because the witness had not signed the documents in the borrower’s presence.
The High Court rejected the borrower’s argument that in order for a deed to be validly executed, the person executing it and the witness must not just have signed but must have signed in the presence of one another. Upon reviewing section 1(3) Law of Property (Miscellaneous Provisions) Act 1989 (LP(MP)A), the court accepted that there is a clear requirement in section 1(3)(a)(i) LP(MP)A for the person executing the deed to do so with the witness present due to the wording “in the presence of a witness who attests the signature”. However, it noted that there is no such express requirement in relation to the witness themselves. The court considered it “plain” that if those drafting the legislation had wanted there to be a requirement that the witness should sign in the presence of the person executing the document, they could have very easily expressed it in the wording of the statute. Omitting such a requirement was unlikely to be accidental so the court concluded that the proper interpretation of s.1(3) LP (MP) A is that “while there is a requirement for the person executing the deed to sign in the presence of a witness, it is not a requirement for the witness to sign in the presence of the person executing the deed (or indeed of anybody else)”.
Although this case was decided on the interpretation of LP(MP)A, similar provisions in relation to execution of deeds apply in relation to companies in the Companies Act 2006, and we can expect the same rules in relation to witnessing to apply in that context.