ELECTRONIC SIGNATURE OF WITNESS STATEMENTS: IS IT VALID? A FIRST INSTANCE DECISION

The question of whether a witness statement can be signed electronically is often described as an “open” issue. It was considered by District Judge Jenkinson in Fitzpatrick -v- AIG Europe Ltd (Liverpool County Court 1st July 2015*).

THE CASE

The claimants were bringing an action for personal injury. The defence was that the impact between the vehicles was too low to cause injury. There was also a dispute in relation to the number of people in the claimants’ vehicle.  The court made a peremptory order in relation to disclosure together with a peremptory order that the claimants file witness statements explaining what documents were missing.   When the statements were sent the defendants noted apparent inconsistencies in the signatures. Upon making enquiries it transpired that the signatures were electronic signatures using a method known as Echosign. The defendant made an application for a declaration that the claimants had failed to comply with the peremptory order on the grounds that the witness statements were not properly signed.

THE DEFENDANT’S SUBMISSIONS

The defendant argued that the very definition of witness statement involved a personal signature from the witness.

CPR 32.4(1) states:

“(1) A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.”

Electronic signature of documents

The defendant argued that the requirement that the statement be “signed by a person” overrode the more general rule in CPR 5.3. which states:

“Where any of these Rules or any other practice direction requires a document to be signed, that requirement shall be satisfied if the signature is printed by computer or other mechanical means.”

White book notes

There is some discussion in the notes to the 2015 white book as to what is a “document”, noting that:

“The question what is, and what is not, a “document” for these purposes is not free from doubt. There are many documents which, in accordance with the CPR provisions should be signed. They include the following… statements of truth (verifying statements of case; witness statements, and statements of case.” (5.3. p.181).

Witness statements are different

The defendant argued that a witness statement is materially different to other documents, most of which can be signed on the claimant’s behalf. It was further argued that the particular method used in these circumstances did not comply because there was no certainty as to who “pressed the button” to produce a “faux” signature.

The overriding objective

The defendant argued that using CPR 1.2 supported the defendant’s construction. Requiring a physical signature put the parties on an equal footing; ultimately it saved expense; it was not disproportional; personal signature did not led to any great delay and was not unfair. Requiring a personal signature did not take up any of the court’s resources.  In particular, however, requiring a personal signature was the most effective means of ensuring compliance with rules, practice directions and orders.

has put before the Court evidence of three cases in which the use of Echosign has led to difficulties. The defendant gave three examples of where the use of Echosign in particular

•  In one the case was struck out on the morning because the name on the electronic signature on witness statement  was different to the claimant’s name.
•  In the other a witness denied knowledge of the statement which he said he had seen for the first time shortly before    trial and the case was adjourned so that an interpreter could be used.
• The third the case was discontinued shortly before trial. The insurer involved thereafter interviewed the claimant            who stated that they had no knowledge of the statement that had been served on their behalf.

In all of these cases Echosign signatures appeared to have been placed on the witness statements.

THE DISTRICT JUDGE’S DECISION

The District Judge held that electronic signature of the witness statements complied with the rules.

The judge reserved judgment for a short while and then stated:

(1)       The starting point was CPR 5.3 which states that electronic signature is sufficient.

(2)       The next question was whether a witness statement is a “document”.

(3)       There is no definition in the rules but the notes to 5.3 of the white book refer to a witness statement as a document.               The judge directed himself that this was editorial comment.

(4)       The next question was whether the specific wording of CPR 32.4(1) displaced CPR 5.3.

(5)       It was accepted, as a general principle, that specific wording replaces a general rule.

(6)       The rule stated that a witness statement should be “signed by a person”.

(7)       The question was whether the words “signed by a person” displaced 5.3.

(8)       The Defendant submitted that the Overriding Objective gave rise to significant factors why the rule should be                         construed to require personal signature to further the overriding objective.

(9)       However if the authors of the rule had wanted witness statements to displace the general provisions the rule could               have said so expressly and made it clear that witness statements were an exception.

(10)     The system used by the Claimants had a means of tracing them. There was equal scope for a handwritten signature            to be signed falsely.

(11)     At a time when the need for compliance was paramount the fact of electronic signature was expedient. This, in itself,             favoured the use of electronic signatures.

(12)     If electronic signature of witness statements was a widespread problem then the solution lay with approaching the                 Rules Committee.

OTHER POINTS TO NOTE

• The District Judge stated he was surprised that this question had not been considered at a higher level and granted permission to appeal.
• The judge refused the defendant’s application that the claimants file witness statements that had been personally signed.  Having held that electronic signature was a valid signature it was inconsistent to require them to be served again with a personal signature.
• The judge ordered the defendant to pay the claimants’ costs.  However he held that the application did not amount to “exceptional circumstances” and costs were confined to £250 + vat.

COMMENT

I am sure I am not alone in being uncomfortable with the concept of an electronic signature on a witness statement. I am not certain that this issue was ever considered by the Rules Committee and there is a degree of ambiguity in the rules. It would be interesting to know whether anyone has any views or different experiences.

* This post is based on my note of the judgment. I represented the defendant. (I have the permission of my clients).