Most of us are now working from home, and adapting by trying new technologies and making exceptions to our standard practices.
It may then seem odd that notaries appear peculiarly inflexible by insisting on face-to-face meetings for documents at a time when most things are done remotely, including signing documents for use in the UK.
In this context, you may have seen the recent Government response to the Law Commission report on the Electronic Execution of Deeds, dated 3rd March 2020, in which it largely agreed with the report’s conclusion that English law currently recognises the validity of electronic signatures:
“The existing framework makes clear that businesses and individuals can feel confident in using e-signatures in commercial transactions”.Robert Buckland, Lord Chancellor and Secretary of State for Justice
You may then well ask:
The short answer is – in some cases, maybe (we’d need to see the documents to check), and in most cases, no (though this may change).
Any notary will tell you that the default position for certifying signatures on documents is that he or she needs to see you sign the document in person.
The Law Commission Report, all 137 pages of which you can find here, does eventually make this clear. Understanding why this is case requires an understanding of what a notary is doing.
The Commission seeks to assess the current law as regards electronic signatures in its opening statement (assessment with which the Government, in its recent statement, has confirmed it agrees).
It concludes that, under current law, signing electronically is a valid way of executing a document, provided that all formalities specific to the transaction or document are also complied with.
However, the Commission explicitly states some of those formalities cannot be carried out electronically. These include some that are inherent and essential to the notarial function.
For example, on the subject of witnessing a signature:
“Our view is that the requirement under the current law is that a deed which must be signed “in the presence of a witness” requires the physical presence of that witness.”Law Commission Report on the Electronic Execution of Documents, at page 15
Therefore, a notary would have to be physically present to watch you affix an electronic signature. It might also surprise you to know that, unlike in other jurisdictions like France and Italy, notaries in England and Wales cannot themselves sign notarial acts electronically; they must sign in “wet-ink” and place their embossed seal.
When notarising the execution of a document, a notary must also ensure that the document in question, and its effects, are what the party (or parties) intended. The Code of Practice which governs notaries in England and Wales makes clear that notaries must maintain the integrity of the notarial act, which includes ensuring:
that the party or parties to the matter authenticated by the notary are clearly identified and have given their express and informed consent to be boundCode of Practice – Chapter 2
If the notary does not meet you in person, it becomes more difficult for him or her to ensure that you are who you say you are, and that you are not being held at gun-point just off screen on a Skype call. This is also a concern expressed by the Commission, as well as the Law Society in its response to the Consultation, with the example given by them involving Lasting Powers of Attorney signed electronically online, which could the affairs of individuals at risk:
The Office of Public Guardian and the Ministry of Justice “should consider what is sufficiently secure and reliable for donors before introducing any system using electronic signatures.”Law Commission Report on the Electronic Execution of Documents, at page 32
A notary’s function when notarising the execution of a document also includes ensuring the proper formalities are met. As notaries in England and Wales are primarily concerned with documents signed in England and Wales for use abroad, this means that notaries are, most of the time, concerned with ensuring compliance with both the formalities of English law and those of the receiving jurisdiction. Some documents, and some jurisdictions, specifically require signing in the presence of a notary, for example public form documents or affidavits, and those formalities can also, sometimes, demand a handwritten signature.
We strive to make things as easy as possible for our clients, especially in these uncertain times. The good news is that this means that we can identify situations in which we can do some, or most, or even all, of the work remotely. The bad news is that in some cases you cannot simply electronically sign your document and email it to us. Your best bet remains, as always, contacting us in advance, and we can advise the best way to move forward in whatever circumstances.