The ideal procedure when executing documents is to have a physical meeting where all signatories are present, with each document then being properly executed. The alternative, if there can be no single meeting, is to have each party sign separately, with delivery (which completes the execution) then being agreed at a subsequent date. These days, however, it is far more convenient for documents to be circulated by e-mail and for there to be a ‘virtual signing’.

A virtual signing is where final versions of documents are circulated for signature by e-mail, rather than in hard copy form. Signatories should be told to either:

1. print and sign each whole document, and then return copies of the whole (or perhaps copies of the signed signature pages only) by e-mail or fax, with the originals following by post or courier; or
2. print only each signature page, sign that and e-mail back a copy of that signature page, together with a copy of the unsigned final version of the document.

It is important that these procedures are correctly followed (especially since the Mercury Tax [2008] case, which highlighted the need for correct procedures). As far as the procedure in (b) is concerned, counsel has advised that the procedure is a valid means of executing a deed, even though only the signature page is printed out and signed – provided that the signature page and the final version of the deed are returned in the same e-mail (since together they constitute ‘the same physical document’ in electronic form). Thus, attaching the signature page and the final version of the deed to the same e-mail results in two electronic files which together constitute an original of the deed.

The point to appreciate from this is that if final versions of documents are circulated by e-mail, with only the signature page being printed, and that signature page (only) is returned by e-mail, then there will be no ‘physical whole’. This will mean there has not been a valid execution as required for a deed (although it would be sufficient to execute a contract). Source: Clifford Chance.