knowledge 21 March 2016 |

When You Shouldn’t Ask Your Solicitor to Swear an Affidavit

Deponent Should Have Direct Personal Knowledge of Facts

In Irish practice, an affidavit always contains a version of the formula: “I make this affidavit from facts within my own knowledge save where otherwise appears and where so otherwise appears, I believe those facts to be true.” This means that the person swearing (the deponent) is swearing that he or she has direct personal knowledge of the facts set out, for example by being present when a relevant event occurred, unless the affidavit clearly shows that a particular statement is not made from the deponent’s direct personal knowledge, in which case the deponent must identify the source of the information.

Rule Against Hearsay

Evidence in an affidavit of a statement made by a person other than the deponent may offend the rule against hearsay, if the intention is that the third party’s statement would itself be accepted as true (but not where the purpose of including the third party’s statement is merely to show that it was made). However, the rule against hearsay is relaxed somewhat in interlocutory (pre-trial) applications, where the deponent may include statements of his belief of matters outside his or her personal knowledge provided that the grounds for such belief are identified.¹

Correct Starting Point

The starting point must be that the deponent should be the person who best and most directly knows of the matters dealt with in the particular affidavit. In many kinds of pre-trial application, such as applications for default of pleading, or to extend time, this will be the solicitor, because the solicitor personally knows whether a particular pleading or document was or was not delivered or received on time. Similarly, it is perfectly appropriate for a solicitor to swear an affidavit on a client’s behalf, with the client’s authority, where the affidavit relates to actions that he or she personally took, events at which he or she was present, or documents sent to or received by him or her directly.

When Matters May Become Difficult

Matters become more difficult when, as often happens, a client asks a solicitor to swear an affidavit “on instructions”, dealing with matters of which the solicitor has no direct personal knowledge. There can be legitimate reasons why a solicitor is asked to do so, for example if the client or the client’s best deponent is unavailable when the affidavit needs to be sworn. Solicitors want to serve clients’ interests and protect clients’ rights, but cannot protect a client by swearing an affidavit “on instructions” unless the client promptly produces an affidavit on his, her or its own account dealing fully with the relevant facts.

Courts are suspicious when a party to litigation seems to be trying to hide behind another person, including a solicitor, as a vehicle for evidence the party himself or herself should properly give, while shielding the party from cross-examination:

"...a respondent must have the right to apply for the cross-examination of a deponent. This right would be significantly curtailed if not set at nought if the relevant witness were to hide behind a paid professional engaged on his behalf, or indeed any other person…”²

Some Recent Decisions

A recent example of this principle can be seen in the judgment of the High Court (Baker J) in Elkhabir v Medical Council,³ where the applicant applied for judicial review of the Medical Council’s decision to remove him from the Register of Medical Practitioners. The application for leave to apply for judicial review was grounded on the affidavit of his solicitor, who had not represented him before the Medical Council. The order granting leave was expressly made on foot of an undertaking given on the applicant’s behalf that he would personally swear an affidavit for the full hearing. The applicant then failed to swear his own affidavit, and the Medical Council applied to strike out the proceedings.

The applicant’s solicitor explained in a second affidavit that the applicant was reluctant to swear an affidavit on religious grounds. However, the solicitor had for several months advised the applicant of means by which he might furnish evidence in a way that did not offend his religious beliefs.

The court noted that there is no absolute rule that an application for judicial review may not be grounded on an affidavit of a solicitor. However, the facts in the grounding statement must be verified on affidavit. Occasionally, the applicant’s solicitor has the means of knowledge to verify those facts (eg where the judicial review concerns the conduct of proceedings in a lower court or tribunal in which the solicitor was personally involved),⁴ but otherwise it is unsatisfactory that the application is grounded on a solicitor’s affidavit and not that of the applicant himself.⁵ As the solicitor who swore the affidavit did not represent the applicant at the Medical Council hearing, she was not in a position to verify the facts. The applicant’s failure to swear an affidavit on foot of his undertaking had to be viewed in that context and accordingly the applicant’s proceedings were struck out.

A more explicit warning against a party sheltering behind a solicitor’s affidavit was given by Humphreys J in POT v Child and Family Agency.⁶ In a decision refusing leave to apply for judicial review of the process by which the respondent decided that the applicant had committed child abuse, the court noted:

“The applicant in this case did not swear the grounding affidavit himself. He did not set out on oath his own full version of events... More fundamentally, he did not personally verify the statement of grounds…

Leaving aside the special cases where a party is a corporate entity including a corporation sole, or an office-holder where it is not possible or appropriate for this requirement to be literally enforced, a court faced with an application for leave grounded on an affidavit sworn by the applicant's solicitor, rather than by the applicant personally, would, where a personal affidavit is in fact necessary, be entitled to refuse relief, or to adjourn the application pending the swearing of the necessary affidavit, or to grant leave premised on or subject to the filing of that affidavit in due course…

Given that the applicant has expressly stated through his lawyers that he is not going to swear an affidavit, the appropriate course in the circumstances is therefore to refuse the application.”

Conclusion

Both of these judgments reinforce the important principle that a party seeking relief in litigation must be prepared to give evidence openly and directly on his or her own behalf and be prepared to be tested on it. If the court concludes that a party is trying to advance litigation while hiding behind a proxy witness, the consequences for the party’s case are likely to be adverse if not indeed terminal.