The report includes a high-level statement of the law, designed to reassure those who still harbour residual doubts about the validity of electronic signatures. Inevitably, however, the statement is subject to some important qualifications. These are not unique to electronic signatures. They have always applied to traditional wet ink signatures. Thus:
My 2017 article 'Can I Use an Electronic Signature?' identified five steps in analysing whether an electronic signature can be used:
The case contains lessons not only for users, but also for those designing an online process intended to enable users to comply with stipulated formalities.
Kassam v Gill involved Possession Claims OnLine, the facility provided by the Court Service that enables claimants to draft and issue property repossession proceedings online.
As with any English legal proceedings, the claim form and particulars of claim must be verified by a statement of truth: a statement declaring that the claimant believes that the facts stated are true.
The court rules (CPR 22.1(6)) stipulate, as a general rule, that the statement of truth must be "signed by the party, their litigation friend or legal representative".
CPR Practice Direction PD55B provides a PCOL-specific rule, presumably intended to dispel any possible uncertainty about how, in a dedicated online system, a statement of truth would be signed.
Significantly, both CPR 22.1(6) and PD55B stipulate that the stated actions must be “by” — not “by or on behalf of” — the party.
The PCOL system
The most obvious way for PCOL to implement PD55B might have been for the system to provide a box next to the statement of truth into which claimants (in this case a Mr and Mrs Gill) would enter their names by typing them.
However the system was not designed in that way. The only point at which a claimant could type their name into a form would be when initially registering on the system.
When a claimant subsequently went through the online steps to draft, generate and issue a claim form and statement of case, towards the end of the process they would encounter a screen summarising the claim form information and setting out the statement of truth. The claimant would have to tick a box on that screen next to the statement of truth. The system would populate the 'Claimant details' box in that screen with the pre-entered registration information. However the claimant's name would not be shown in or next to the statement of truth box itself, either before or after ticking the box.
Later on in the process, once the claimant had paid the fee and finally requested issue of the proceedings, the system would generate the Claim Form and Particulars of Claim as a PDF document.
It appears that at that point the system would use the pre-entered registration details automatically to populate the 'Signed' and 'Full name' boxes under the Statement of Truth in the final PDF. The judgment in Kassam v Gill sets out the wording of the PDF generated in that case:
Was PD55B satisfied in this case?
In the case before the court the names 'Mr/Mrs Harjit / Jagbir Gill' were entered into the system upon registration not by Mr or Mrs Gill but, in advance of a meeting with them, by an agent whom they had retained to assist them with recovering possession of their property. The agent was neither a legal representative nor a litigation friend (either of whom under CPR 22.1(6) could have signed on behalf of the claimants).
At the meeting the agent took Mr Gill through the forms. Mr Gill, with the approval of Mrs Gill, ticked the online Statement of Truth box on behalf of both of them.
In these circumstances, was the Statement of Truth "signed by the party, their litigation friend or legal representative" as required by the CPR?
The judgment proceeded on the basis that what mattered was whether the PCOL-specific deemed signature provision in PD55B was satisfied. In other words, had the relevant person entered their name on an online form?
The design of the system meant that entry of the names on an online form could take place only at the initial registration stage. But that had been done by the agent, not Mr or Mrs Gill.
When, later in the process, an online form displayed the Statement of Truth, Mr Gill ticked the box next to the Statement of Truth. He did that with his wife’s agreement, but did not (and could not) enter either his own or his wife's name.
Nor did their names appear on the online entry form next to the Statement of Truth (see screenshots above). Those fields were populated only in the PDF, generated at the final stage once the request to issue proceedings had been made.
In those circumstances the judge held that the signature rules were not satisfied. The wrong person had entered the names at initial registration:
In Kassam v Gill the judge went on to find that the failure to comply with the signature requirement did not justifying striking out the claim on that ground. Nevertheless, the case well illustrates the important point that even where an electronic signature is capable in principle of satisfying a statutory requirement for a signature, attention must be paid to other statutory requirements that may affect the validity of the signature.
Since this was a sale of land, the court had to consider whether the offer was “signed by or on behalf” of the solicitor’s client, as required by the Law of Property (Miscellaneous Provisions) Act 1989.
The judge held that the statute was satisfied. He adopted the approach of the Law Commission that what mattered was whether the name was applied "with authenticating intent". The name and contact details had consciously been entered into the firm’s e-mail settings by a person at some stage. The solicitor knew that the system would automatically append his name and contact details. Indeed the judge found that writing ‘Many thanks’ suggested that he was relying on that happening.
In those circumstances it was difficult to distinguish that process from manually adding the name each time an e-mail was sent. The recipient would have no way of knowing whether the details had been added manually or automatically. Objectively, the presence of the name indicated a clear intention to associate oneself with the e-mail – to authenticate or sign it.
While English law is generally accommodating towards the use of electronic signatures (even relatively informal signatures) any specific applicable formalities (such as the deemed signature provision in Kassam v Gill) cannot be ignored.
Often, the most relevant constraints — whether as to medium, form process — do not relate to the form of signature itself, but to surrounding formalities. For instance, the Law Commission’s view in its Report is that a requirement that a document be signed in the presence of a witness cannot be satisfied by someone observing remotely by video link.
To return to the illustration provided by Kassam v Gill, it may be critical that the right person takes the right step, whether in a dedicated platform such as PCOL or on a general purpose signing platform. A busy executive who delegates use of a signing device or procedure to an assistant could fall foul of a legal requirement that the executive’s signature be applied personally – not because the signature is in electronic form, but because the wrong person applied it.
Epilogue: tweaking Kassam v Gill
It is instructive to contemplate two variations on Kassam v Gill: first, if the facts had been a little different; and second if, instead of the deemed "entry of names on an online form" provision in PD55B, the court rules had consisted only of the general signature requirement in CPR 22.1(6): that the Statement of Truth be signed by a party.
(1) Different facts
What if Mr or Mrs Gill, rather than the agent, had entered the claimant names at registration time? Even in this scenario only one or other of Mr or Mrs Gill, not both claimants, would have entered the names at registration.
If, as the judge found, entering the names at registration was the deemed signature, how could it be said that both claimants had done what was required by PD55B?
(2) No PD55B
A mapping analysis can be broken down as follows:
Furthermore, what if (for instance) the final step in the process – the click on the button to instruct the system to issue the proceedings - were executed by an agent (other than a legal representative or litigation friend), not by the claimant themself? If that is the step in the process that actually generates the document required to be signed, could it be said that the document was signed by the claimant? Would all the steps in the process have had to be taken by the claimant personally?