eSignature Legality in The United Kingdom

E-Signature Legality Summary

The rules and case law governing electronic signatures are broadly consistent across the UK, which generally adopts a permissive approach to electronic records and signatures.

Types of Electronic Signature

The UK eIDAS Regulation provides for the following three levels of electronic signatures:

• Simple: data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign.
• Advanced: an electronic signature that is
  1. uniquely linked to the signatory;
  2. capable of identifying the signatory;
  3. created using electronic signature creation data that the signatory can, with a high level of confidence, use under the signatory’s sole control; and
  4. linked to the data signed in such a way that any subsequent change in the data is detectable.
• Qualified: an advanced electronic signature created by a qualified electronic signature creation device and which is based on a qualified (digital) certificate for electronic signatures.

Because the UK eIDAS Regulation sets out minimal, not maximal, standards for electronic signatures, it has limited effect on pre-existing English law, given the already broad definition of electronic signatures that had been adopted in the ECA.

Documents That May be Signed Electronically

The following transaction types generally are eligible for the use of electronic signatures:

• HR
• Corporate Resolutions (subject to any provisions to the contrary under the company’s constitutional documents)
• NDAs
• Consumer Transactions
• Education
• Life Sciences
• Technology sector
• Insurance
• Software Licensing
• Healthcare
• Chattel Paper
• Procurement (assuming there are not specific requirements to the contrary under the relevant procurement process)
• Documents to be Recorded
• Documents to be Notarized

Further Guidance

The following transaction types may not be signed electronically in certain circumstances and require an assessment on a case-by-case basis:

• Real Estate
• Banking
• Lending
• Government Filings

For documents signed electronically where the document’s authenticity is challenged, English courts will accept such documents as prima facie evidence the document was authentic and it will be up to the person challenging authenticity to produce evidence to the contrary. The ECA does not address what evidentiary authority should be provided to any type of electronic signature; instead, it is a factual determination. In terms of best practices, maintaining a clear record of electronic trail through the platform would be sufficient to address an evidentiary issue that may arise.

Case Law

The following four cases are examples of where English courts have addressed the use of electronic signatures:

• Golden Ocean Group Ltd v. Salgaocar Mining Industries Pvt Ltd;
• Caton v. Caton [1867] LR 2 HL 127;
• Yuen v. Wong [First Tier Tribunal] (2016/1089); and
• R (on the application of Mercury Tax Group Ltd) v. HMRC [2008] EWHC 2721 (Admin).