REMOTE WORKING AND THE LITIGATOR 3: SIGNING WITNESS STATEMENTS IN A TIME OF SOCIAL ISOLATION
One major difficulty that faces all litigators at present is how to get witness statements signed. Here are a few ideas.
E-SIGNATURES MAY BE VALID
There is no binding authority on this issue. However the decision of District Judge Jenkinson in Fitzpatrick -v- AIG Europe Ltd (Liverpool County Court 1st July 2015*), considered in detail here.
IF IT CANNOT BE SIGNED
It is possible that a photograph of a signature on the witness statement may suffice. If this cannot be done consider PD22. There is an argument that it applies here, it specifically refers to a person who is “unable to … sign the document”. In present circumstances a witness cannot sign a document.
Inability to persons to read or sign documents to be verified by a statement of truth
3A.1 Where a document containing a statement of truth is to be signed by a person who is unable to read or sign the document, it must contain a certificate made by an authorised person.
3A.2 An authorised person is a person able to administer oaths and take affidavits but need not be independent of the parties or their representatives.
3A.3 The authorised person must certify:
(1) that the document has been read to the person signing it;
(2) that that person appeared to understand it and approved its content as accurate;
(3) that the declaration of truth has been read to that person;
(4) that that person appeared to understand the declaration and the consequences of making a false declaration; and
(5) that that person signed or made his mark in the presence of the authorised person.
3A.4 The form of the certificate is set out at Annex 1 to this Practice Direction.
The annex cannot be followed totally since it it not possible because the witness cannot “make his mark”.
Certificate to be used where a person is unable to read or sign a document to be verified by a statement of truth
I certify that I [name and address of authorised person] have read over the contents of this document and the declaration of truth to the person signing the document [if there are exhibits, add ‘and explained the nature and effect of the exhibits referred to in it’] who appeared to understand (a) the document and approved its content as accurate and (b) the declaration of truth and the consequences of making a false declaration, and made his mark in my presence
A REVISED VERSION
“I certify that I … have read over the contents of this document and the declaration of truth to the person signing the document who appeared to understand (a) the document and approved its content as accurate and (b) the declaration of truth and the consequences of making a false declaration, the statement was made at a time when the witness was in social isolation and it was not possible for them to make a mark in my presence.”
REMEMBER THESE ARE ONLY IDEAS
These are suggestions. None of these has any official or judicial backing. We all have to try to find sensible ways of proceeding in difficult times. I cannot guarantee they will be accepted by the court.