Can law firms use electronic signatures for client documents?

 

Which client documents can be signed electronically?

Most of them. There is no general rule stopping a law firm using electronic signatures. The Law Commission confirmed in its 2019 report on electronic execution of documents (Law Com No 386). It states that an electronic signature can execute a document wherever a signature is required, as long as the person signing means to authenticate it.

That covers the everyday work of a firm. Client engagement letters and terms of business, ordinary commercial contracts, settlement agreements, consent orders, and internal authorisations can all be signed electronically without special steps.

Can court documents be signed electronically?

Yes. Under rule 5.3 of the Civil Procedure Rules, if a court document needs to be signed, the signature can be added electronically or printed by a computer or other mechanical means.

Practice Direction 5A says the person’s name must also be printed on the document, so it is clear who has signed it. A signature image on its own is not enough if the person cannot be identified.

The same applies to statements of truth. These can also be signed electronically.

There are also separate rules for courts using the Electronic Working scheme. Practice Direction 51O includes requirements about electronically filed documents, including when signed originals must be kept and produced if the court asks for them.

What is a Mercury signature, and is it electronic?

A Mercury signature is not an electronic signature. It needs a real signature in wet ink.

The name comes from a 2008 case, R (Mercury Tax Group Ltd) v HMRC, in which the court said that for a deed, the signature and the witness’s attestation must form part of the same physical document. The Law Society and the City of London Law Society then set out practical procedures for signing at a distance, first in 2009 and updated since.

The Mercury method works like this...

• The conveyancer or solicitor emails the final version of the document to the person signing.
• That person prints only the signature page, signs it in ink in front of a witness, and scans or photographs it.
• They then send back a single email attaching both the final version of the document and the scan of the signed page. Together, those two attachments count as the signed document.

So Mercury solves the problem of people being in different places. It does not remove the pen. A firm that tells a client they can use a Mercury signature and then sends them an e-signing link has misunderstood the method.

One practical point. Using an e-signing platform can make the Mercury requirements easier to meet, because the whole final document is uploaded and everyone signs that same version, rather than signature pages moving between drafts. The requirements still apply in full.

What about deeds?

A deed can be signed electronically, but if an individual is signing, a witness must be physically present and must then sign as well. Watching by video call does not count. For the detail, including what HM Land Registry accepts, see Can an electronic signature be witnessed?.

Companies have an easier route. Under section 44 of the Companies Act 2006, a company can execute a deed through two authorised signatories, such as two directors, or a director and the company secretary. No witness is needed, and the Law Society’s 2016 practice note confirms the two can sign in counterpart rather than the same copy.

One exception. If a company is executing a deed by using its common seal in the presence of two directors, both directors must be physically present and should sign the same counterpart.

What cannot be signed electronically at all?

A will must be signed on paper in the presence of two witnesses who are physically there (Wills Act 1837, section 9). A temporary provision allowing remote witnessing during the pandemic expired on 31 January 2024 and was not renewed. Even during that period the signature itself had to be in wet ink.

Statutory declarations also fall outside of this. HM Land Registry practice guide 82 lists documents that can be signed by Mercury signature, and expressly excludes statutory declarations while allowing statements of truth. A statutory declaration must be made in front of a person authorised to administer oaths.

Some other document types are excluded by statute or in practice. For the wider list, see What documents cannot be signed electronically?.

What should a firm have in place?

• Decide which document types the firm will allow to be signed electronically, and write it down. The risk is not usually the law. It is a fee earner applying the wrong method to the wrong document.
• Keep the audit trail. If a signature is ever challenged, the evidence that the right person signed at the right time comes from the platform record, not the document.
• Check that any online portal you use records a real signature rather than a tick, particularly for statements of truth.
• Check that your professional indemnity insurer is content with your approach, and that your client care letters explain how documents will be signed.
• Agree the signing method with the other side early in a transaction. Mixing methods causes more problems than either method alone.