Nigel West considers a recent case where electronic signatures came under the spotlight


Maxfield-Martin v SRA [2022] EWHC 307

In Maxfield-Martin a consultant had to complete an electronic application form for re-accreditation on the Law Society’s Mental Health Panel of Solicitors. The form contained declarations to be signed by the applicant and a ‘partner/senior manager’ in the firm. The partner’s declaration was in two parts which stated: “I hereby certify and acknowledge that the information provided in this application is correct to the best of my knowledge” and “I have read and understood the declaration above”. The consultant told the partner that the form had to be completed, and the partner, who was “very busy, preoccupied and irritated with the consultant” said “just get it done”. The consultant added the partner’s signature to the form, sent it to the Law Society and gained re-accreditation. The firm reported him to the SRA on the basis that the partner had never been shown the application form and the SRA took disciplinary proceedings against the consultant alleging that he had acted dishonestly and without integrity.

In the Solicitors Disciplinary Tribunal, the consultant called as a witness an assistant solicitor who had completed an application for re-accreditation while she was at the same firm. She told the tribunal that she had completed the form in the same room as the partner, had given him an opportunity to review the form and had told him that the application needed to be signed by a partner. The partner did not look at the form, or discuss the content with her, and told the assistant solicitor to sign on his behalf saying “I trust you. Put my name on it”. The SRA did not prosecute her and the tribunal accepted her evidence, which included the fact she saw nothing wrong with the partner giving her authority to sign the form. 

The tribunal made a general statement that “solicitors should not sign documents in the name of someone else”. That was followed by findings that:

  1. the assistant solicitor and the consultant both believed they had authority to complete the declaration on behalf of the partner and add his signature to their forms, but that
  2. the declaration on each form was false, because the declaration required each signatory to certify and acknowledge the accuracy of the content of the form and the partner had not seen or reviewed the applications.

The tribunal decided that the consultant had acted dishonestly and lacked integrity, because he had submitted a form containing a false statement to the Law Society, and suspended him. 

The tribunal expressed no criticism of the assistant solicitor, and said her case was “somewhat different” as she had told the partner his signature was needed while they were in the same room. 

The circumstances of the case took it outside the general rule because the wording of the declaration required the signatory to personally certify the accuracy of the form

On appeal, Mr Justice Soole said the tribunal’s findings could not be sustained as there was no substantive difference between the process adopted by the assistant solicitor and the consultant. The absence of criticism of the assistant solicitor showed that the tribunal had not taken account of the consultant’s honest belief that he had authority to sign the form. The suspension was set aside.

The High Court’s judgment contained the following submissions and dicta which are of general interest:

  1. Counsel for the consultant submitted that the tribunal’s general assertion that “solicitors should not sign documents in the name of someone else” was too sweeping and contrary to authority. Bowstead on Agency (22nd ed) states “Signature by proxy: As a general rule, at common law a person sufficiently signs a document if it is signed in his name and with his authority by somebody else. An indication that the signature is per procurationem [“pp”] is desirable but not essential.”
  2. The SRA’s counsel stated that the SRA did not dispute the general common law rule set out in Bowstead. However, the circumstances of the case took it outside the general rule because the wording of the declaration required the signatory to personally certify the accuracy of the form.
  3. Soole J said at [83]: “[for the purpose of the appeal] it is irrelevant as to whether or not it was necessary …for [the partner] personally to enter his electronic signature on the form…Without deciding the point, I am inclined to accept [the SRA’s submission].. that if, and only if, [the partner] had read and reviewed the contents of the application and was satisfied with the truth of the declaration, he could have properly authorised [the consultant] to undertake the physical task of inserting his electronic signature. However best practice must surely be for the partner/senior manager personally to enter that signature.” 
  4. When setting aside the tribunal’s findings, Soole J also said at [99]: “In reaching these conclusions I emphasise that my decision is based on the very particular facts of this case and having regard to the particular reasoning of the Tribunal. The imperative obligation for solicitors to ensure that forms such as this are completed with the utmost care and accuracy is undiminished.”