The essential affidavit survival kit

Most people think they can swear - but district judge Geoff Edwards knows how to do it properlyThere are some 70 references to affidavits in the Civil Procedure Rules 1998 (CPR).

The schedules also include four references to 'sworn statements', which is the preferred description in the post-Woolf vocabulary and the CPR themselves contain nine similar references.And they are still alive and well in family proceedings, with the Red Book clocking up 560 references to affidavits and another 44 references to sworn statements.

Despite the continuing significance of sworn documents in litigation, the process of attestation is still learned by most trainee solicitors by observation rather than tuition.WordingThe correct method of administration of an oath is governed by the Oaths Act 1978, which is quite specific - except for the most fundamental requirement.The manner in which the testament should be held is set out in section 1(1) which goes on to require recital by the deponent of 'the words of the oath prescribed by law'.

But no words are prescribed by law.

The traditional wording - 'I swear ...

that this is my name and handwriting and that the contents of this my affidavit are true, and that these are the exhibits referred to' - is one of custom and practice.In fact, with the exception of courts martial and oaths of allegiance, the precise wording to be used in the administration of an oath as part of the legal process has never been defined or forensically tested.The Law Society's Guide to Oaths and Affirmations contains recommended wording for most circumstances, including those to be used where the deponent is blind or illiterate or needs the assistance of a translator.For litigation purposes, the CPR prescribe the form of words to be used in the jurat in similar circumstances.Commissioner's roleFurther duties are imposed on the person administering the oath by the Commissioner for Oaths Act 1889.The role of a commissioner for oaths used to be an office in its own right subject to separate qualification in the same way as the office of notary public remains today.

However, over the years, the authority of a commissioner to administer oaths has been extended to all solicitors and barristers, fellows of the Institute of Legal Executives and licensed conveyancers, who may all describe themselves on the affidavit as commissioners.The commissioner is required to administer the oath and complete the jurat and must individually initial alterations.

These cannot be bracketed together and initialled once.

Nor can the affidavit be altered after it has been sworn.

If errors are found, they must be corrected, a new jurat added and the document sworn again although the deponent does not need to sign a second time.The commissioner's signature is applied below the jurat and, if it is illegible, his name must be added legibly.

ResponsibilitiesA commissioner is not to administer an oath in any proceeding in which he is interested (Commissioner for Oaths Act 1889, section 1(3)) nor, if a solicitor, where any of the parties to the proceeding is a client (Solicitors Act 1974, section 81(3)).

In this context 'proceeding' is not confined to litigation.The Law Society's Guide to the Professional Conduct of Solicitors imposes further requirements on the solicitor commissioner, including that he confirms the identity and handwriting of the deponent, takes a view as to the deponent's competence and satisfies himself that the deponent is aware of the nature of the act he is about to undertake.Fortunately, the commissioner does not assume any responsibility for the contents of the affidavit.PresentationCPR PD32 paras 2 to 16 broadly apply to affidavits most of the requirements of witness statements set out in paras 17 to 19.

In particular, attention is drawn to the following requirements, which are observed almost exclusively in the breach: where the affidavit is filed in support of or in response to an application, the exhibits should not be filed (PD23 para 9.6); where there are successive affidavits from the same deponent, the numbering of the exhibits should be sequential through the affidavits and should not restart with each affidavit (PD32 para 4.3(2)); and there should a reference in the margin to the location of any exhibit within a bundle of exhibits (PD32 para 6.1(7)).Rightly or wrongly, an affidavit is still regarded as a more serious and solemn document than a mere statement.

If the deponent is to take the process as seriously as the court expects, the drafting, presentation and attestation of the document should be conducted with great care.District Judge Geoff Edwards sits at Keighley County Court