Given the current outbreak of COVID-19 and restrictions on movement it has bought, the question of whether for the purpose of creating a deed (and to satisfy the requirement of section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989) a witness to a signature has to be physically present at the signing of the deed or alternatively whether this can be done remotely (e.g. after the signature or via Skype/Facetime video platforms etc.) is likely to be a crucial issue and fundamental in facilitating the completion of a variety of agreements during the ‘lockdown’.
The point was considered in the recent case of Man Ching Yuen v Landy Chet Kin Wong where it was suggested that physical presence of the witness at the time of signature would probably still be required (although the case did not make a firm decision on the point).
The decision does follow the Law Commission’s 2019 report on electronic signatures. However, the Law Commission’s report justified the requirement of physical presence for witnesses on the basis that the witness could immediately attest the signature following witnessing it. However, since the publication of the report the courts have made it clear that attestation does not need to immediately follow witnessing the signature, which leaves the current position uncertain and arguably lacking in justification.
Whether the courts and/or the Law Commission revise the current (and arguably unclear) position in light of the outbreak remains to be seen but for the time being it appears the safe approach would be to continue to require witnesses to be physically present when witnessing signatures for deeds.
What is clear is that at the very least the position needs to be clarified to ensure deeds can be validly executed during the pandemic. It is hoped that the move to home working to tackle the spread of coronavirus may bring with it an unexpected benefit in highlighting the current unclear and outdated position relating to the witnessing of deeds and its failure to reflect technological advancements in the commercial world.
For further advice on any property litigation issues, either in relation to COVID-19 or generally, please contact Rob Nicholson or Katherine Breckin.
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