05 May 2020
For the first time in over 400 years, the Registers of Scotland have registered a deed in the Register of Inhibitions and Adjudications without a "wet" signature.
Our Dispute Resolution team are instructed in a high value contentious insolvency case in the hospitality sector.
We moved the court to grant a motion for inhibition on the dependence which an interim remedy preventing the dissipation of heritable property for the duration of a court action and which is designed to preserve the creditor's position where there is a real and substantial risk that assets will be dissipated and/or that the defender is verging in insolvency.
Having obtained warrant for inhibition on the dependence from Lord Doherty in the Commercial Court of the Court of Session, we submitted an electronic copy of the interlocutor to be registered as a Notice of Inhibition, in the Register of Inhibitions and Adjudications.
Section 9G(1)(c) of the Requirements of Writing (Scotland) Act 1995 (“the 1995 Act”) precludes the registration of electronic documents. However, our position was that section 9G 2(a) and 3(c) of the 1995 Act allow for the electronic copies to be registered where the document is authenticated by the court and the document is in a form prescribed by the Scottish Ministers respectively. We were able to satisfy section 9G 2(a) of the 1995 Act – as we could show that the court had granted the interlocutor. In addition the the view we took was that section 9G 3(c) is now satisfied by Part 1 of Schedule 4 of the Coronavirus (Scotland) Act 2020 which provides:
1(1)An electronic signature fulfils any requirement (however expressed and for whatever purpose) that—
(a)a document of a type mentioned in sub-paragraph (4), or
(b)a deletion or correction to such a document, be signed, initialled or signetted.
Following detailed correspondence with both the Legal Services and Policy Units at Registers of Scotland, they agreed with our analysis and confirmed that the Notice of Inhibition was the first to be registered without a “wet” signature in the 403 years since the Register first came into existence in 1617.
Inhibitions and in particular inhibitions on the dependence are essential tools in preserving the position of creditors in contentious matters and we anticipate the need for these will be more important than ever before in the months ahead. It is therefore reassuring to know that both the courts and as importantly, the Registers of Scotland are ready and able to deal with these quickly, efficiently and without the need for a “wet” signature.