Electronic Execution of Documents: Reform and New Initiatives in England & Wales
Trend towards Digitisation
The move towards digitalisation of process and documents continues apace, catalysed by computational improvements and remote working arrangements. Whilst the English litigation space moves slowly, electronic court bundles and remote hearings are now commonplace, albeit the latter are not without contention: since the first trials in 2018, concerns have been expressed by the Bar Council and others that remote hearings may be unsuitable for certain purposes.
In transactional work, the use of electronic means of interaction is well established. The UK has particular strengths in global commercial work and the legal services that flow from it, many documented under the law of England & Wales. Today’s large commercial transactions are, of course, the source of much future contentious work, within the courts or arbitral tribunals: this jurisdiction has been active in ensuring this commercial foundation continues.
However, the possibilities for future digitisation are not limited to large commercial disputes: possibilities for e-signatures are profound and go to the root of English civil law process, in the law of obligations, insolvency, wills, land law and much else — possibly even CPR may be updated in parts.
Law Reform and Industry Working Group
I have had the pleasure of being a member of the Industry Working Group (IWG) established by the Ministry of Justice to consider the way forward for electronic execution of documents. This follows from the Law Commission’s project, 2019 report (Law Com No 386) and governmental response.
Over the last two years, there has been considerable discussion between a diverse group of subject matter experts with expertise in law, industry and corollary areas. We published an interim report in February 2022, which set out Best Practice Guidance and initial recommendations, and have now finalised and published our final report.
The IWG makes various recommendations within the Final Report, including:
- Specification and introduction of minimum standards in relation to e-signatures;
- Adoption of uniformity of approach to e-signing and online ID by way of international standard (such as the UNCITRAL Model Law on Electronic Signatures) or mutual recognition;
- Consideration of reform of the law relating to deeds, notably the formalities around execution, and homogenisation of certain incongruities connected with local authorities;
- Removal of the requirement of a third party to be involved in a statutory declaration, thereby allowing such declarations to be made validly wholly electronically.
These recommendations, and the underlying initiative, intersect with many legal areas: legislative response to these recommendations will likely drive future change, especially in commercial matters, and provide a further foundation for planned Law Commission workstreams such as that on smart contracts.
Read the Final Report here: https://www.gov.uk/government/publications/industry-working-group-on-esignatures-final-report