Signing documents in counterpart: what is required?

Generally, yes, but it is best practice to include an express counterparts clause.

In most cases, a contract or deed can still be signed in counterpart even if it does not contain a specific counterparts clause. The absence of such a clause should not, by itself, affect the validity of a deed executed in counterpart. However, including a counterparts clause helps reduce the risk of a party later arguing that the agreement was not binding, because they did not appreciate they were entering into a contract by signing a copy that had not also been signed by the other parties.

For that reason, the preferred approach is to either:

1. have all relevant parties sign the same document; or
2. include an express counterparts clause if the document is to be signed in counterpart.

Counterparts clauses are very common and are rarely negotiated.

There is currently no specific English law authority confirming whether each authorised signatory may sign a separate counterpart of the same document. However, existing guidance supports the view that an execution clause requiring two authorised signatories may be signed in counterpart. This approach appears to be recognised in the joint Law Society and City of London Law Society note on electronic execution, and in the Law Society’s subsequent Q&As on electronic signatures and virtual completions.

Given the lack of clear legal authority on this point, the safer approach is for both signatories to sign the same counterpart where this is practical. The directors do not need to sign at exactly the same time. If there is enough time, one director can sign the document first and then send the same counterpart to the other director to sign before it is delivered. The same approach can also work electronically, with one director adding their electronic signature before the document is sent to the second director to sign. If the two directors are in different locations and this is not practical, the company could instead arrange for one director to sign the document in the presence of a witness.

In many cases, yes. One party may sign a document in wet-ink while another signs electronically, provided the chosen method is valid for that document. Before using a mixed signing approach, it is sensible to check that all parties are comfortable with it, that any witnessing requirements can be met, and that no filing authority, registry or overseas law requirement needs a wet-ink original.