A joint working party of The Law Society Company Law Committee and The City of London Law Society Company Law and Financial Law Committees has issued guidance on the execution of documents by parties not physically present at signing meetings. The guidance is relevant for documents governed by English law.
The purpose of the guidance is to set out a range of practical options available to parties signing documents at virtual signing meetings following the recent English case of Re Mercury Tax Group Limited and another v HMRC. This case has led to discussion about the effectiveness under English law of using pre-signed signature pages and virtual signing meetings where signature pages are sent by email or fax.
The guidance suggests three options for signing by parties not physically present at signing meetings. In certain circumstances, the type of document will dictate which option should be used. The three options are summarised below.
- Option 1 – Return PDF/word counterparts plus signature page – Final copies of the agreed form documents are emailed to all absent parties. A separate document containing only the signature page may also be attached. Each absent signatory prints off and signs the signature page only and returns this in PDF together with a copy of the final version of the document, both in a single email. For deeds, the arrangements should also make clear when delivery is to take place. This is the only suitable option for deeds and agreements involving real estate.
- Option 2 – Return signature page only – Final copies of the agreed form documents are emailed to all absent parties. A separate document containing only the signature page may also be attached. Each absent signatory prints off and signs the signature page only and then emails this as a PDF with authority to attach it to the final version of the document.
- Option 3 – Advance pre-signed signature pages – Prior to the signing meeting the lawyer co-ordinating the signing circulates the signature pages of the documents still being negotiated to each party who will not be present at the signing meeting. Each signature page should identify the document to which it relates. Each absent signatory prints off and signs the signature page and returns it by email to the lawyer with instructions to hold it as undelivered pending finalisation of the document. Once the final form of the document is agreed, the final version is circulated to each absent party requesting confirmation that the final version is agreed and that their signature page can be attached to the final version.
As a practical matter, it is obviously important that all parties agree the process for virtual signing meetings in advance. Alternatives to virtual signing meetings, such as obtaining powers of attorney from absent signatories, should also be considered.
References in this article to the use of email includes the use of fax.
View the joint working party guidance (6 page pdf).