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Affidavits in family actions: the new practice

12 November 18

Some points for practitioners to beware of when drafting or notarising an affidavit, arising from the recently introduced Court of Session practice note

by Alan W Robertson

The recent Court of Session Practice Note No 1 of 2018: Affidavits in family actions took effect as of 24 September 2018. What are the significant key points for a solicitor notarising an affidavit?

First, at para 7, the affidavit must state (amongst other things) whether the deponent has been sworn or has been affirmed. Given that most of us will undoubtedly work on the basis of an in-house style, one must be careful not to state inadvertently that the affidavit has been solemnly sworn as well as affirmed. This will otherwise likely cause confusion – especially where the witness has to either swear or affirm immediately prior to giving their evidence in the witness box. Importantly, one must also check that the concluding words “All of which is the truth as I shall answer to God”, or “All of which is affirmed by me to be true” match whether the witness has either sworn or affirmed. They clearly cannot do both!

Secondly, one must be mindful that para 11 creates a positive obligation to ensure that the content of the affidavit is based on “statements, precognitions and other material emanating directly from the witness”.

Thirdly, and perhaps the most important of all, is the obligation in para 12 to ensure that the affidavit is not drafted in “language that the witness would not use”. Midway down the paragraph is a clear statement that the affidavit must be “expressed in the witness’s own words – even where this results in the use of confused or intemperate language”. This is quite an interesting point. It is interesting because often there is a tendency to draft statements in quite a lawyerly way, rather than that of a lay person, for example. Given the obvious potential for the deponent to be cross-examined on their choice of words and terminology, this is clearly a major issue to bear in mind. From the point of view of an instructing solicitor sitting behind counsel, there would be frankly nothing more embarrassing (almost) than suddenly to become aware that your own drafting had resulted in damage to your own case from words being used by the solicitor, but not by the deponent. A small, but very significant point.

In any event, one must be mindful of the need to warn the deponent of the possibility of being cross-examined. Out of interest, para 12 also makes reference to the witness’s evidence being discounted if it appears that they have been “improperly briefed or coached”. It is not clear from para 12 what is intended by being improperly briefed or coached. However, on a sensible view it would be inappropriate, for example, for the solicitor to somehow prompt the witness or warn them about potential lines of cross-examination and how best to answer the questions. None of that would be remotely appropriate – especially given the potential consequences for the solicitor.

Fourthly, an interesting point arises out of para 13. It is stated here that the deponent must make it clear whether they are speaking from their own knowledge or relying on hearsay evidence. If one is to judge one’s evidence by the best evidence rule, such a distinction clearly has a fair degree of importance attached to it.

Fifthly, para 14 makes it clear that the drafting style and approach should be based on short numbered paragraphs. Unfortunately, and in a case where there is much to say, a trap that one could fall into is a tendency to construct large and lengthy paragraphs. Again, the requirements of para 14 are worth bearing in mind very strongly. One does not want to lose the ear of the bench or face criticism for a poorly drafted affidavit.

Sixthly, paras 17 and 18 both refer to a three month time limit. This is something to be especially aware of in cases involving children or financial conclusions, given that the practice note makes it clear that both are liable to change over the passage of time. The ultimate issue in both such cases is that if the affidavit was notarised more than three months prior to the date of lodging, then they will likely be rejected by the court simply on that basis. There is clearly a need therefore for the solicitor to have these prepared as close to the point to minuting for decree as possible. As the saying goes, if you snooze, you lose! In a busy day-to-day practice, no solicitor would have the appetite to have to redraft the affidavit(s) again with all the associated inconvenience and expense.

Out of interest, a fairly similar practice note was issued for the Sheriffdom of Lothian & Borders. Many of the observations made in relation to the Court of Session practice note can be applied to this practice note also.

Clearly, this fairly recent Court of Session practice note underpins the need for diligence, care and attention when preparing affidavits.

Alan W Robertson is a senior associate with MBS Solicitors, Edinburgh

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