Personal Guarantees
23rd June 2011
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You couldn't make it up -- unless you are a bank

Validity of electronic documents

For most companies, it is among the worst things that could happen: a lawyer's letter lands on the managing director's desk informing them that a personal guarantee case is now being taken to court. The pressure is now on to assemble evidence - and quickly. But in many cases, that evidence is not held in paper files, but in a myriad of electronic formats: emails, human resources or customer management systems, scanned-in faxes and application forms.
Many banks are confused as to what extent electronic documents will be accepted by a court of law as irrefutable evidence that the company was in the right all along. Rejection of a company's electronic documents by a court can be disastrous for a company's legal case.

The court will give most credence to the best evidence available, such as original documents or oral testimony. Evidence that is not original - for example, a printout of an electronic document or a scanned-in version of a paper original - is considered more remote and needs to have demonstrations of authenticity and reliability because electronic evidence can be easily manipulated.

For an electronic document to be valid the document should include: the author's name; the date the document/record was stored; the names of anyone who has accessed or made changes to the document; details of the changes made to the document and version control; details of movement of the document from medium to medium and from format to format... and the list goes on.
This is a complex task for the banks to manage, and helps personal guarantee claims to no end as the likelihood of the banks complying with these rules is very small indeed, thus weakening their case substantially.

About the Author

Stefan W

Member since: 16th September 2011

My name is Stefan Wilkinson and I deal with the mis-selling of financial products
Mis–selling is more widespread than you might have realised
I believe mis – selling is wrong and needs highlighting...

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