Virtual execution of documents
Virtual execution of documents

The following Commercial guidance note provides comprehensive and up to date legal information covering:

  • Virtual execution of documents
  • Mercury Tax Case
  • Initial considerations
  • Option 1—email of document and signed signature page(s)
  • Option 2—e-mail of signed signature page(s)
  • Option 3—signature in advance of finalising the document

This Practice Note provides practical guidance on how to execute documents properly when one or more parties to a contract are not physically present. This is sometimes known as virtual signing or virtual closing.

The guidance is consistent with the Law Society's guidance, made on 16 February 2010 in response to the decision in the Mercury Tax case. The Mercury Tax case considered the effectiveness of pre-signed signature pages. In that case participants in a tax avoidance scheme signed signature pages in draft deeds which were then detached and attached to final, substantially different versions of those documents. HMRC’s challenge to the validity of those deeds was upheld by Underhill J who held that the parties must be taken to have regarded signature as an essential element in the effectiveness of the documents. The common understanding was that the document to be signed exists as a discrete physical entity (whether in a single version or in a series of counterparts) at the moment of signing. In its guidance, the Law Society suggests that the Mercury Tax decision is limited to its facts. This has been questioned in Bioconstruct GmbH v Winspear where the Mercury Tax case was held to have potentially broader application. The judge in Bioconstruct GmbH v Winspear did not find anything in Underhill J’s analysis in the Mercury Tax