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Swearing Affidavits – Keeping the Wheels of Justice Turning

It is said that justice delayed is justice denied. To avoid those delays during the current pandemic the Courts, lawyers and the parties to litigation require to find alternative ways of doing things.

One important part of litigation is the making of affidavits, whether to comply with discovery obligations or to provide more substantive evidence.

In light of current circumstances, the Bailiff has issued a Direction regarding affidavits executed pursuant to the Affidavits (Advocates and Solicitors) (Jersey) Law 1992 (“the Law”).

The relevant part of Article 1 of the Law provides:

(1) An advocate or solicitor of the Royal Court may take an affidavit for the purposes of a proceeding in a court or before a statutory body in Jersey.

(2) An affidavit taken under this Article by an advocate or solicitor shall be signed by the person making the affidavit (hereinafter referred to as the “deponent”) in the presence of the advocate or solicitor taking it who, before the advocate or solicitor signs the jurat, shall:

(a) satisfy himself or herself of the genuineness of the signature of the deponent; and
(b) administer the oath or affirmation in the manner required by law.

(2A)   If the deponent is unable to sign the affidavit by reason of being physically incapacitated, the solicitor or advocate taking the affidavit shall endorse upon the affidavit that it has not been signed by the deponent by reason of the deponent’s physical incapacity.

(3)     An advocate or solicitor taking an affidavit under this Article shall –

(a)     state in the jurat at what place and on what date the affidavit is taken; and
(b)     add after the advocate’s or solicitor’s signature the word “advocate” or “solicitor” as the case may be.

(4)     An advocate or solicitor who is personally responsible for the conduct of any proceeding shall not take an affidavit in connection with that proceeding.”

It is an offence to use an affidavit purportedly made under the Law knowing that it was not taken in conformity with the Law. Further an advocate or solicitor who signs a jurat to an affidavit purportedly made under the Law without due administration to the deponent of an oath or affirmation is guilty of an offence. 

However in current circumstances the Court was invited to consider whether Article 1(2) may be satisfied in circumstances where it is not possible or appropriate for an advocate or solicitor to have direct contact with the deponent without creating a risk to health.  Due to this the court will  regard an affidavit as having been made in the presence of the advocate or solicitor taking it if the following measures are taken. 

The deponent and the lawyer must establish contact by video link for the purpose of the affidavit being sworn.  The lawyer must: 

(i) Positively identify the deponent before the affidavit is sworn;
(ii) Administer the oath or affirmation in the usual way; and
(iii) See the deponent sign the affidavit.   

The partly executed document must then be posted or delivered or in some other way transmitted to the lawyer who at that stage signs and dates the jurat and indicates (if different) the date upon which the affidavit was sworn.  The lawyer must also sign each exhibit sheet, if any. 

It is essential that the jurat sets out on its face the process by which the affidavit was executed (which in any event is necessary under Article 1(3)(a)) including that the deponent was present remotely.  Further, the lawyer who takes the oath from the deponent should take all reasonable steps to ensure that the deponent is not making the affidavit in the presence of any third party whose presence might be inappropriate, and that the deponent is executing the affidavit of their own free will.    

The other formalities required by Article 1 of the Law are not affected by this new direction and the directions will only be inforce until the Covid-19 situation subsides.

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