Defences

A manuscript signature cannot be disputed unless the following defences can be established: the signature is a forgery;¹ the signature was conditional; the signature was obtained as a result of misrepresentation; the signature was obtained in such circumstance that it was not the act of the person signing (non est factum); mental incapacity; mistake; where one party unilaterally added material terms to the writing after the other’s signature; where the person signing the document did not realize the document they signed was a contractual document; by statute as being unreasonable or unfair. These defences are not dealt with here, other than a brief consideration of the disputes where a manuscript signature has been at issue. The reader is referred to the standard textbooks on the subject.

It is well known that manuscript signatures are often forged. To prevent this problem, and to test both the validity and the effectiveness of a manuscript signature, some documents require the signature to be affixed in the presence of a witness or an authorized official, such as a notary.

Evidence of the manuscript signature

Should a manuscript signature recorded in a document be challenged, evidence will need to demonstrate the issues discussed below. It should be noted that the evidential burden is a factor in considering the precise nature of the signature. In the Canadian case of Regina v Blumes,² the signature on a vehicle registration document issued by the Insurance Corporation of British Columbia was challenged. It was alleged that the document was not admissible because it was not clear whether the signature was a manuscript signature, a rubber stamp or a facsimile signature. This document was afforded the presumption of regularity, which meant that a mere challenge was not sufficient to avoid the operation of regularity.

The identity of the person affixing the manuscript signature

Evidence will have to be adduced to show the signature affixed to the document is that of the signatory. In such cases, the signature in question will have to be compared to samples of the same signature. A signature may be forged, or the signature could be that of the signatory but they may have attempted to disguise their handwriting. Thus a handwriting analyst³ will need to have two kinds of samples: ‘request samples’ which are produced for the examination and duplicate the material in question, and naturally occurring samples made by the signatory without realizing the example will be examined. Two main factors can then be examined: that of pictorial impression, which includes matters such as slope, size, margins, spacing and the position of the writing in relation to lines, and then the way in which letters are constructed, such as the direction in which the letter ‘o’ is formed, the way the letter ‘t’ is crossed and the way in which the person has written letters that require more than one movement. Forgers tend to concentrate on the pictorial impression and fail to copy details of the way letters are constructed. Likewise, people trying to disguise their handwriting also concentrate on the pictorial impression, rather than changing the formation of their letters. Further analysis can be undertaken by considering the relative proportions of letters, the spaces between letters and pressure variations. The attributes of the instrument used to affix the signature to the document can also be considered, such as how smoothly the signature has been written, whether it is jagged or confident, whether there is a pause and where the instrument lifts off the surface.

The carrier itself can be examined, from the type of material used (physical properties, optical properties), any security features (watermarks), the printing process used (the use and identification of a photocopier, computer or printer) and other evidence such as perforations and microscopic analysis that might reveal imperfections that may link the carrier to the person. Further examination can include the comparison of typescript; impressions by means of Electrostatic Detection Apparatus; whether more than one type of material was used to affix information on the carrier; whether any alterations were made or entries obliterated, and the sequence in which intersecting lines have been written.⁴

Where the party relying on the authenticity of the manuscript signature successfully demonstrates the similarity of the manuscript signature to the sample signatures, the evidential burden will then fall upon the alleged signatory to prove the signature was forged. The principle also applies to a forged signature, as noted in Saunders v Anglia Building Society (formerly Northampton Town and County Building Society).⁵ In this case the signature was obtained in such circumstance that it was not the act of the person signing.

Intention to authenticate and adopt the document

Where a person affixes their manuscript signature to a document, it must be shown that they intended to sign the document. The case of L’Estrange v F Graucob Limited,⁶ which pre-dates the modern legislation, serves to illustrate the point. In this case, Miss L’Estrange carried on the business of a café. The defendants manufactured and sold automatic slot machines. In early 1933, Miss L’Estrange agreed to buy an automatic slot machine for cigarettes for a total of £81 5s 6d, payable over eighteen months. She signed a form, printed on brown paper and headed ‘Sales Agreement’. This document included a number of contract terms written in very small print, one of which included the words ‘This agreement contains all the terms and conditions under which I agree to purchase the machine specified above, and any express or implied condition, statement, or warranty, statutory or otherwise not stated herein is hereby excluded’. The machine was installed on 2 March 1933. However, it failed to work, and she eventually initiated an action in the county court to recover the payments she had made. Judgment was made in her favour. The decision was reversed in the Divisional Court because Miss L’Estrange had signed the written contract, and in doing so had acknowledged that she was bound by the terms. There was no misrepresentation that induced her to sign. It was irrelevant that she did not read the contract or know its contents.⁷

Representing the signature of another in a document, rather than signing with your own name, can be fraught with difficulties. In Pryor v Pryor,⁸ Anthony Pryor made a will on 5 November 1859. One of the attesting witnesses was his daughter. The testator wanted his daughter’s husband to sign the will as a witness, but because it was not known when he would return, he asked his daughter to sign her husband’s name instead of her own. She did so. Sir C Creswell refused to admit the will to probate because the subscription was not intended to represent her signature.

Although a manuscript signature on a document may not be in dispute, the person signing the document may wish the other party to infer they had the authority to sign the document, as in the case of Ringham v Hackett.⁹ This presumption may be rebutted by evidence. In Ringham, the name printed on the cheque was that of a partnership, and the signature by one of the partners on the cheque was deemed to be sufficient evidence to intend the recipient to infer the cheque was drawn on the partnership. In the case of Central Motors (Birmingham) v PA & SNP Wadsworth (trading as Pensagain),¹⁰ Central Motors required a cheque for the payment for a motor car in the name of the firm Pensagain. In accordance with this request, Mr Wadsworth gave Central Motors a cheque with his signature beneath the name of the firm, which was printed on the cheque below that of the names of the defendants. It was held that by handing over a cheque signed in this way, Mr Wadsworth provided sufficient evidence from the circumstances to personally authenticate the document as being a cheque of the firm. By signing the cheque, Mr Wadsworth had the requisite intent to adopt the cheque as that of the firm.