At first glance, the question of signatures might not seem like a particularly crucial one. After all, we’ve been putting pen to paper for hundreds of years. But that, really, is the nub of it: the way we live has changed a great deal in recent decades. Shouldn’t the way we sign documents have changed, too?
Though the process of signing a contract might sound simple enough, there are plenty of scenarios when it isn’t. For one thing, in order for a client to sign a document their solicitor has drawn up, they need to be physically in the same place.
There are all sorts of reasons why this might not be possible. Clients might live in a different city or country to their solicitor. They might be in hospital. They might find it difficult to get to their solicitor’s office due to a disability. Or they might simply have a busy schedule that makes it difficult for them to fit in face-to-face meetings.
In situations like these, original legal documents often have to be posted back and forth. This adds extra time to the process, as well as the added risk and uncertainty of important documents going missing.
What options are there?
There are three options when it comes to signing documents.
Wet ink signatures
This is the name given to the traditional way of signing. All parties, including witnesses, need to sign the same physical copy of a document. This necessitates either all parties being in the same room to do so, or the original document being sent in the post between parties.
Mercury signatures
This is where all parties individually sign a physical copy of the document with their witnesses present. This signed copy is then scanned or photographed and shared electronically. In these cases, each party does need to physically print off a copy of the document, but they do not all need to sign the same hard copy.
Electronic signatures
This is where documents are signed completely electronically, usually with the help of software. If witnesses are required, the witness must be in the same physical space as the person signing the digital document as they do so.
Are these options valid?
All three of these methods of signing documents are used regularly. However, different bodies and organisations have different rules on what kind of signatures they will and won’t accept.
HM Land Registry was one of the last organisations to insist on only wet ink signatures for most documents. This was a real point of contention for solicitors, as this insistence was often blamed for slowing down transactions. This came to a head during 2020, when the majority of solicitors were working from home and/or limiting the number of in-person meetings they were conducting. On 4th May 2020, HM Land Registry announced that they would accept documents signed using the Mercury approach. This was followed on the 27th July 2020, with an announcement that they would also accept documents that had been signed electronically.
Since then, most public registries, including HM Land Registry, have continued to accept Mercury and electronic signatures for most types of documents, including deeds. However, solicitors must ensure they have carefully followed each organisation’s guidelines in order for signatures to be considered valid.
What’s next?
Though electronic and Mercury signatures are clearly a big development, there is still space for improvement in this area. There is growing hope that organisations such as HM Land Registry will come to accept truly digital signatures, which, legally speaking, are quite different to electronic signatures.
Unlike electronic signatures – which still need to be witnessed by another person – digital signatures can be done completely independently. This is managed by software which is designed to check and confirm the identity of the person as part of the process of them signing. These checks can negate the need for a witness at all. This certainly makes the process of signing documents more streamlined, and may even reduce the possibility of fraud and misuse.
If we can help answer any practice questions about Mercury, electronic or digital signatures, please do get in touch. hello@inspiredprogress.co.uk