Law Commission ‘Misses Opportunity’ to Confirm the Implications of E-Signatures on Civil Litigation

According to CPR 5.3, any obligation to sign a document can be satisfied by mechanically printing it.

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When CPR 5.3 is read in conjunction with other rules and practice directions (PD), however, the possibility of signing documents by mechanical means (e-signature) is less definitive.

For example, CPR 32.4(1) defines a witness statement as ‘a written statement signed by a person …’ which infers that this may be an exception to CPR 5.3.

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In the courts, it has been established that an e-signature appended to a statement of truth was satisfactory [Fitzpatrick v AIG Europe Ltd, (unreported), 1 July 2015], but a ticked box on an online claim form could not be described as a signed statement of truth [Kassam v Gill and Anor (unreported), 13 August 2018.

Another area of inconsistency unravels when PD 51O [Electronic Working Pilot Scheme (EWPS)] interacts with CPR 5.3.

The EWPS, launched in the Queen’s Bench Division of the Royal Courts of Justice earlier this year, allows users to file documents to the electronic court file (CE-File), via an online portal.[i]

PD 51O para 4 demands that ‘original signed documents’, e.g. should be preserved and made available for future inspection. Surely, though, this is impossible if CPR 5.3 can circumvent the creation of wet ink hard copies.

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So, how admissible or evidentially sound are (purportedly) e-signed documents, generally? Equally, can claim forms and witness statements, as examples of essential documents in the litigation process that require a signature, be signed by mechanical means?

In August 2018, the Law Commission commenced a Consultation on electronic execution of documents in England and Wales, seeking views on provisional conclusions and proposals for reform. It was hoped that any confusion over the English and Welsh legal standpoint on e-signatures in civil litigation might be simplified.

Now 1-year on, the Commission’s Report has been presented to Parliament, pursuant to section 3(2) of the Law Commissions Act 1965, with the House of Commons having ordered that the publication be printed on 3 September 2019.

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Responding to the substance of the Report, litigators have regarded it as a ‘missed opportunity’ to confirm the implications e-signatures in the field of civil justice and admitted that other practitioners may ‘justifiably feel disappointed’ that the Law Commission’s Report only makes recommendations of ‘broad application’.[ii] It merely indorses the fact that e-signatures are admissible in evidence in legal proceedings and proposes techniques to substantiate the authenticity of e-signatures.

It is foreseeable that the remaining issues, surrounding the compatibility of e-signatures with CPR rules and PD’s, may be debated by the Lacuna Sub-Committee of the Civil Procedure Rules Committee (CPRC) at a later date.

 

[i] ‘Practice note by Senior Master Fontaine: The Electronic Working Pilot Scheme’ (12 February 2019 Courts and Tribunals Judiciary) <https://www.judiciary.uk/publications/practice-note-by-senior-master-fontaine-the-electronic-working-pilot-scheme/> accessed 20 September 2019.

[ii] Zaid Fathoala, ‘England's Law Commission reports on e-signatures – a missed opportunity?’ (17 September 2019 Freshfields Bruckhaus Deringer) <https://riskandcompliance.freshfields.com/post/102fqwv/englands-law-commission-reports-on-e-signatures-a-missed-opportunity> accessed 20 September 2019.