Given the measures being introduced to reduce personal interaction as part of managing COVID-19, a recent decision which casts doubt on the validity of a signature witnessed via video link may prove to be even more important than initially thought. Anyone intending to make such arrangements should certainly think carefully before doing so.
Yuen v Wong concerned the requirement in the Law of Property (Miscellaneous Provisions) Act 1989 for individuals to sign deeds “in the presence of a witness who attests the signature” (see section 1(3)). In this case, the witness had witnessed the signature of the document via Skype video link rather than being physically present – technology which was very much in its infancy when the 1989 Act was passed.
Video witnessing was reviewed by the Law Commission last year (see Electronic execution of documents (Law Com 386) - https://www.lawcom.gov.uk/project/electronic-execution-of-documents/). Its report confirmed the uncertain state of the present law in this area and recommended an industry working group to consider the technical aspects of remote witnessing.
The First-Tier Tribunal noted the Law Commission’s conclusions and that the issue required a balancing of risk and convenience. The judge found that the 1989 Act requirements were unlikely to be extended to allowing documents to be virtually witnessed rather than in person – although the nature of the case before the Tribunal means that its decision is not conclusive on this point.
There is certainly more room for argument here, not least because an electronic signature has been accepted as sufficient for another part of the same legislation. If the COVID-19 crisis continues for the lengthy period feared, it may even be that the government will need to cover the point as part of its emergency legislation measures.
On the presence question it was said that whether the words of s.1(3) "in the presence of a witness" were satisfied by video link, under the present law, permitted more than one conceivable answer. As highlighted by the Law Commission (Law Com No. 386), the law in this area is uncertain. However, it was held that the Applicant had a realistic prospect of persuading a Court or Tribunal that physical presence was required.