Knowledge

Bedell Cristin recently swore its first virtual affidavit and since then we have had a lot of enquiries from practitioners asking how we did it. Our process and rationale is set out in this guidance note.

Article 1 of the Affidavits (Advocates and Solicitors) (Jersey) Law 1992 provides that:

1 Power to take affidavits

(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.[1]

(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.

(5) An affidavit containing a jurat purporting to be signed by an advocate or solicitor shall be admitted in evidence without proof –

(a) of the signature; or

(b) that the person is an advocate or solicitor, as the case may be.

Ordinarily, deponent and swearing advocate would be in the same place at the same time; the advocate would identify the deponent, explain what is about to occur and confirm that the deponent wishes to swear the document, administer the oath, have the deponent sign the document and then the advocate would sign the affidavit themselves.

Guidance from the Law Society (Directions, 24 March 2020) is to the effect that in relation to wills and the requirement for the testator to execute a will "in the presence of two witnesses", the Court is "unable to adopt an interpretation of the salient words to provide for Skype/FaceTime witnessing of Wills … because it goes to the formal validity of the Will."

Whether this applies in the case of an affidavit is yet to be determined but clearly hearings can take place via video "in the presence of" a party (see for example, Michael v The Governor of HMP Whitemoor [2020] EWCA Civ 29). Accordingly, we approached the affidavit on the basis that it might be permissible to swear in counterparts.

If counterparts are not acceptable, and it is not possible for the deponent to sign the affidavit in the presence of the advocate over a video link, Article 2A provides an alternative route where the deponent is "unable to sign the affidavit by reason of being physically incapacitated".

The current guidance from the States of Jersey is that:

"People should only leave their homes for a total of 2 hours each day, and in the following limited circumstances:

1. when you need to shop for food, medicine, and other basic necessities, which should be as infrequently as possible

2. for daily exercise. This can include walking, cycling, running, exercising or caring for animals, provided you maintain social distancing from everyone outside your own household

3. for any medical needs, including providing care".

Swearing an affidavit is not one of the current reasons for leaving home; nor is it essential work (as defined).

Accordingly, Bedell Cristin took the view that social distancing and restrictions on movement mean that a deponent is "unable to sign the affidavit [in accordance with the Law and in front of an advocate] by reason of being physically incapacitated".

If Article 2A applies:

1. there is no requirement for the deponent to sign the affidavit;

2. the advocate must still identify the deponent, explain what is about to occur and confirm that the deponent wishes to swear the document, and administer the oath (which we did via video link);

3. the advocate must sign a modified jurat which reads as follows (to capture execution by counterparty if permissible) and article 2A:

This executed copy of the affidavit of [        ] has not been signed by the said [        ] as he/she and I are unable to meet given social distancing guidelines under the current Covid-19 outbreak. To the extent that it cannot be executed in the presence of one another as required by the Affidavits (Advocates and Solicitors) (Jersey) Law 1992 (the "Law"), he/she is therefore under a physical incapacity within the meaning of the Law. His/her signature has been appended by him to a copy of the signature block by way of counterpart execution and the said page is attached hereto.

4. We also modified the signature block for the deponent to read "Sworn at [deponent's address] via videolink and in counterpart on this [ ] day of [        ]".

Integrity of the document thereafter is important and the executed one is the version signed by the advocate, to which the page signed by the deponent is attached.