Re-Attaching Executed Signature Pages

Corporate and banking transactions, particularly more complex or

multi-national deals, often present difficulties as regards signing

arrangements. The availability of signatories at a certain

time or the need to make a post-execution amendment can prompt the

parties to look for alternative ways to deal with completion

formalities.

A recent English High Court case, R (on the application of

Mercury Tax Group and Another) v HM Revenue and Customs, ruled

out one possible alternative by confirming that re-attaching an

executed signature page to a modified deed will not create a valid,

binding and effective deed.

The case involved the execution of signature pages whilst the

deed in question was still in draft form. After execution,

and without notifying the signatories, certain material changes

were made, square brackets were completed and the name of the

trustee was inserted. The court considered the Law of

Property (Miscellaneous Provisions) Act 1989 which provides for

execution of deeds. The consensus was that "the

signature and attestation must form part of the same physical

document" and, therefore, that the deed had not been validly

executed.

It should be noted that the case specifically concerned English

deeds, although the court also cast doubt on whether the practice

would be effective in respect of simple contracts. The

court's comments were limited to the facts of the case before

it and commentators have suggested that the parties to such

contracts might take a pragmatic view depending on their

circumstances. Specifically, it has been suggested that

caution should be taken in instances where the parties envisage a

process culminating in the signature of a binding agreement but

this has been contrasted with instances where there is no

requirement for a contract to be in writing. It does,

however, remain best practice to avoid the transfer of signature

pages from one version of a contract to another.

A distinction has also been drawn between the failure to

properly enter into a deed or simple contract and varying such a

document which has already been properly entered into.

Existing case law which provided for variation by the parties

remains good authority, however parties are not permitted to create

a "clean" copy of an amended contract and to transfer

original signature pages to that clean version.

Although Mercury Tax is an English case, it should be

noted that it will be relevant to Scottish companies entering into

English deeds. A...