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Affidavits – essential reading

13 August 18

Family briefing: a new Court of Session practice note on affidavits in family actions clarifies a number of matters where best practice has been in doubt, or subject to different interpretations

by Lucia Clark

The Court of Session has recently released a practice note on the use of affidavits in family actions. Practice Note No 1 of 2018 will come into effect from 24 September 2018, and makes for essential reading for all family lawyers.

The increasing use of affidavits for evidence in chief has resulted in a huge change in practice in family cases over recent years, first in the Court of Session, but also in the sheriff court. Guidance on some aspects of best practice in affidavits has been taken from case law up to now, notably the Luminar Lava case [2009] CSOH 68; [2010] CSIH 01. This practice note aims to fill in the gaps from some of the existing case law, and promote more consistent best practice.  

Drafting

Paragraph 12 of the practice note states that the drafter “must not frame the affidavit in language that the witness would not use”. It notes that the court is likely to attach little weight to such an affidavit, or any affidavit where it appears the witness has been improperly coached. The note stresses the need to express things in the witness’s own words – even where this means “confused or intemperate language”. The temptation for many practitioners when drafting affidavits is to smooth over rough edges, or substitute more appropriate words than the witness has in fact used; this note makes it very clear that these temptations must be avoided. 

Importance

Paragraph 6 of the note states that the witness should be made to appreciate the importance of the affidavit and must understand that it constitutes his or her evidence in the case. It also stresses that the possible consequence of giving false evidence should be explained to the witness. Witnesses should appreciate that this is not a casual conversation, and that the consequences of perjury can be serious.

Practicalities

The final section of the practice note helpfully clears up some issues in relation to sight of affidavits where, in the writer’s experience, differing practices have arisen. First, para 31 notes that where an affidavit refers to a production, it must refer to the production by its number of process – however, there is no need to the productions to be borrowed, docqueted and signed in defended actions. This contrasts with undefended actions, where if a production is referred to in the affidavit, this must be borrowed from process, put to a witness, docqueted and signed. 

Paragraph 32 notes that unless the court directs otherwise, parties should intimate and lodge affidavits on the same day, so as to minimise the risk of one witness seeing another’s evidence. In accordance with previous guidance, para 33 states that legal advisers must not show the witness the precognitions, affidavits or draft affidavits of any other witness. However, once affidavits have been lodged, the witness may be shown any other affidavits that are relevant to his or her evidence. If the witness consequently wishes to correct, modify or qualify any of his or her evidence, this can be done by way of lodging a supplementary affidavit. Again, this will correct the practice which has arisen, in our experience, in some cases, where it has been suggested that the parties should not see the affidavits lodged on behalf of the other side until after they have completed cross-examination.

Pros and cons

From a practitioner’s point of view, there are certainly question marks over whether written affidavits are best evidence, or helpful for clients in family cases. One obvious downside is the front-loading of costs prior to proof. Drafting an affidavit properly and comprehensively is very time-consuming, and therefore costly to the client, particularly if matters settle after affidavit preparation is complete but before proof. There is also the question of whether this can in fact be “best evidence” when the written affidavit loses the witness’s tone of voice, body language and demeanour in the witness box.

Set against that is the factor that the witness can give their evidence in chief in a calmer and more relaxed environment than the courtroom. There is also, of course, the saving of court and judicial time, albeit at the expense of loading this cost onto the client. 

Whatever your views on the pros and cons of affidavits, it seems that they are here to stay, and this practice note gives much needed guidance on these essential documents. 

Lucia Clark, partner, Morton Fraser LLP

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