In the most part this continues, although recently it has been noted that a small number of Solicitors firms are serving witness statements with either an electronic signature and even on occasions a typed signature.
Electronic Signatures are used on an everyday basis in all areas of our lives these days, from obtaining car insurance, applying for credit to taking a holiday. Electronic signatures are frequently also used within law firms to sign important documents such as Conditional Fee Agreements and to obtain signatures on documents such as medical authorities.
However, Solicitors seem to take a cautious approach when dealing with Court documents, seeking to obtain ‘wet ink’ signatures instead of using electronic signatures. It would seem that there is also a lack of confidence from the Solicitors actually serving the electronically signed documents and it is noted that challenges made by the opposition as to the reliance on such signatures within witness statements are being taken seriously and often leading to re-submission of witness statements signed with ‘wet ink’ or settlement of claims prior to hearings on this point.
The question needs to asked therefore as to why there is such uncertainty from Solicitors regarding the use of electronic signatures. Is it that the law is unclear and open to interpretation in this area, or is it simply the fact that Solicitors are anxious about changing their ways?
Background Legislation
The Electronic Communications Act 2000 came into force in the UK in July 2000 and provided recognition that much legislation pre-dated the age of electronic communications and provided powers to remove any restrictions in legislation which prevented the use of electronic communications in place of papers. Further, at Section 7 (1) of the Act it states:
In any legal proceedings—
(a)an electronic signature incorporated into or logically associated with a particular electronic communication or particular electronic data, and
(b)the certification by any person of such a signature,
shall each be admissible in evidence in relation to any question as to the authenticity of the communication or data or as to the integrity of the communication or data.
Further, at Section 7 (3):
For the purposes of this section an electronic signature incorporated into or associated with a particular electronic communication or particular electronic data is certified by any person if that person (whether before or after the making of the communication) has made a statement confirming that—
(a)the signature,
(b)a means of producing, communicating or verifying the signature, or
(c)a procedure applied to the signature,
is (either alone or in combination with other factors) a valid means of signing.
An electronic signature is defined within Section 2 of the Electronic Signatures Regulations 2002 as:
Data in electronic form which are attached to or logically associated with other electronic data and which serve as a method of authentication.
Civil Procedure Rules
The above legislation deals with electronic signatures in a wider context, but what about the use within the Civil Procedure Rules, and specifically, in relation to signatures in witness statements?
CPR 32.4(1) states:
A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.
CPR 5.3 states:
Where any of these Rules or Practice Directions requires a document to be signed, that requirement shall be satisfied if the signature is printed by computer or any mechanical means.
It would appear therefore that the Civil Procedure Rules support the use of electronic signatures.
Case Law
There have been a number of challenges in the Courts relating to the use of electronic signatures. In the property contractual case of Golden Ocean Group Ltd v Salgaocar Mining Industries PVT Ltd [2012] EWCA Civ 265 the Court of Appeal confirmed that courts would uphold the use of electronic signatures to satisfy the requirement of documents being signed.
In relation to Personal Injury matters, the first instance decision of Fitzpatrick v AIG Europe (2015) (Liverpool County Court) specifically deals with the use of electronic signatures within witness statements.
DJ Jenkinson confirmed that an electronic signature of the Claimant’s witness statement complied with the Rules.
In this case the Claimant had filed witness statements with electronic signatures using a programme called ‘Echosign.’ The Defendant made an application on the basis that the Claimant had failed to comply with exchange of witness evidence on the grounds that the witness statement was not properly signed. In support of their arguments they raised amongst other points that the witness statement was not a document as defined by CPR 5.3. The District Judge in his Judgment noted that although there was no definition within the Civil Procedure Rules of what a document is, 5.3 of the White Book referred to a witness statement as a document. As such and on consideration of the Civil Procedure Rules as referred to in the article above, he was satisfied that the Claimant had complied with the exchange of witness evidence and dismissed the Defendant’s application.
Comment
The law is clear on the use of electronic signatures when signing legal documents, and in fact the relevant legislation has been in place for nearly 20 years.
Within the context of the signature of witness statements within personal injury claims, the Civil Procedure Rules specifically confirm that signatures printed by a computer is an acceptable signature within the meaning of the Rules. It is perhaps surprising therefore that more law firms have not made use of the rules regarding electronic signatures, or, if, if there is in fact concern regarding whether a witness statement is a document for the purposes of the Civil Procedure Rules why there hasn’t been more challenges at a higher level of Court.
Why therefore are Solicitors not using the electronic signature when obtaining ‘wet ink’ signatures from Clients and/ or their witnesses can prove difficult and can be a time-consuming process in the circumstances when the Client is not particularly co-operative, when dealing with last minute instructions and when witnesses, although willing to provide a statement to the Solicitor, do not wish to be put out in returning documents, perhaps on numerous occasions by post? Is it that it is Solicitors own anxiety and uncertainty regarding the law in this area which means that electronically signed documents are not commonplace?
The use of electronic signatures allows the Client and/or witnesses to sign the document ‘on-line’ meaning that the return is often almost instantaneous and it does not require a lot of effort on the part of the Client/witness. Whilst any typed signature appears to be acceptable in accordance with the rules, for the law firm concerned with challenges to the interpretation of ‘electronic signature,’ electronic signature software can be used. Finally, the environmental impact of producing witness statements electronically are also reduced.