Is video witnessing a remote possibility?

The inventor of the webcam wrote a few simple lines of code to enable a researcher to check whether a coffee pot in the computer lab at Cambridge University was full or empty, before going in search of caffeine. The invention sparked a technological revolution that enables us to converse by video link across the globe, resulting in the litigation in Yuen v Wong [First-tier Tribunal 2016/1089, 8 January 2020]. Unilateral notice The case concerned a unilateral notice lodged at the Land Registry to protect an interest in a house. The property was purchased and registered in the joint names of the parties. But it was subsequently registered in the sole name of the transferee following the registration of a transfer that was signed in Hong Kong, before being sent to a solicitor in England. Having watched by video link while the document was executed, the solicitor signed her name to confirm that she had witnessed the document being signed, and then dated the transfer. Six years later, the transferor attacked the validity of the transfer. However, instead of applying for rectification of the register, he chose to register a notice, claiming the right to have the register altered to correct a mistake. But the transferee applied to have the notice cancelled. So the First-tier Tribunal had to decide whether the notice should remain on the register. This depended on whether the transferor had a realistic prospect of making a successful application to rectify the register. Bearing witness Section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989 requires instruments executed by individuals as deeds to be signed “in the presence of a witness who attests the signature”. Does this mean that they must each sign contemporaneously, in the presence of each other? And must witnesses be physically present? Or will virtual presence suffice?  The Law Commission addressed video witnessing in its consultation paper on electronic execution of documents (consultation paper 237). It doubted whether witnessing by video link is permissible, but observed that notarisation by video link is possible in US states. And, after suggesting that witnessing via a live video link “is sufficiently similar to witnessing in the physical presence of the signatory”, the Law Commission asked consultees whether video witnessing and electronic attestation (ie the act of recording on the document itself that the witness did observe its execution) should be permitted. The responses to the consultation, raising technical and practical issues, were summarised in Electronic execution of documents (Law Com 386), which was published in September 2019, and did not convince the Law Commission of the need for legislation allowing video witnessing. But it suggested that the technical aspects of remote witnessing could be referred to an industry working group for consideration, before any legislative decision is made. Contemporaneous signature Does section 1(3) require execution and attestation to be contemporaneous? In Wright v Wakeford [1811] 34 ER 176 the court held that the requirement for attestation was not satisfied where a witness had attested many years later. And the Supreme Court of Western Australia reached a similar conclusion in Netglory Pty Ltd v Caratti [2013] WASC 364. Consequently, consultation paper 237 states that “the signature of the witness must also be affixed at the time of execution”.  But in Wood v Commercial First Business Ltd (in Liquidation) [2019] EWHC 2205 (Ch), the High Court decided that “while there is a requirement for the person executing the deed to sign in the presence of a witness, it is not a requirement for the witness to sign in the presence of the person executing the deed”. So a mortgage deed was not invalid, even though the witness, who was physically present when the borrower signed the mortgage, added his own signature to the attestation clause when the borrower was not there. Consequently, the judge in Yuen decided that signature and attestation need not be contemporaneous. And, because the gap between signature and attestation was only a matter of days, the judge felt able to follow Wood, without expressing any opinion on the length of the permissible gap in such circumstances. Physical presence But the judge was not prepared to go any further. Video conferencing was still in its infancy in 1989, and Skype did not come into existence until the 21st century. Consequently, the judge did not believe that section 1(3) encompasses witnesses who are virtually, but not physically, present. It followed that there was a realistic prospect that a court hearing an application for rectification would decide that the transfer was not validly executed as a deed.  However, the judge directed the Land Registry to cancel the unilateral notice because the transferor did not have a realistic prospect of making a successful application for rectification for other reasons. Comment It would have been brave to ignore the Law Commission’s views. However, electronic signatures are often now accepted in place of wet-ink signatures. And, in Neocleous v Rees [2019] EWHC 2462 (Ch); [2019] PLSCS 189, the county court ruled that an electronic signature is capable of satisfying the requirements of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, espousing the view of the Law Commission that “an electronic signature is capable of meeting a statutory requirement for signature if an authenticating intention can be demonstrated”. If it is right that modern technology can be used to satisfy section 2, will the courts eventually decide that modern technology can also be used to satisfy section 1(3) of the same statute? Or will parliament decide to replace section 1(3) with more modern legislation? Key point Is it possible to witness a document being signed by video link and then attest to its execution afterwards? Allyson Colby is a property law consultant