CVLs – Electronic Signatures

A member’s written resolution under S.296 of the CA 2006 signed with an electronic signature by a person and sent or supplied to a company will have been sufficiently authenticated for the purposes of S.1146 of the CA 2006 if:

The directors of a company that has adopted the CA 2006 Model Articles for private companies limited by shares, the CA 2006 Model Articles for public companies limited by shares or the Companies Act 1985 Table A articles may take a decision or pass a directors’ written resolution (as applicable) under those articles by the relevant directors signing a resolution using an electronic signature.

Pursuant to Section 1.5 of The Insolvency (England and Wales) Rules 2016, (1) A document in electronic form is sufficiently authenticated [2]—(a) if the identity of the sender is confirmed in a manner specified by the recipient; or
(b) where the recipient has not so specified, if the communication contains or is accompanied by a statement of the identity of the sender and the recipient has no reason to doubt the truth of that statement.While this provision does not explicitly state that a statement of affairs can be signed using an electronic signature, the signatory of a statement of affairs is ultimately providing a statement of truth. Indeed, electronically executed statements of truth have been found valid by the Courts.

In the case, of Fitzpatrick v AIG Europe Ltd, (unreported), 1 July 2015, (Liverpool County Court), District Judge Jenkinson held that electronic signature of the witness statements complied with the CPR rules.

Another noteworthy case is the Court of Appeal decision in Zurich Insurance plc v Romaine [2019] EWCA Civ 851. In this case, the Court of Appeal granted permission to bring committal proceedings against a claimant who had knowingly made false statements of truth. Two of the statements had been executed with e-signatures. The claimant argued that he had never signed a statement of truth or seen the Part 18 responses, which contained an electronic signature. The Court noted that such evidence and explanation would be a matter for the court at the substantive contempt hearing.

Deeds

It is important to note that there is significant legal uncertainty surrounding the execution of deeds using e-signature. HM Land Registry have recently amended their policy on this subject and - in certain circumstances - will now accept electronically executed deeds see Land Registry Practice Guide 8.  We would strongly suggest obtaining legal advice before you attempt to execute any deed using an e-signature.

Summary

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