Affidavits

An affidavit is a sworn statement used in support of or against an application in court. Affidavits, like oral evidence, are subject to the rule against hearsay. However, the hearsay rule does not apply to affidavits used in interlocutory proceedings (which are accepted on information and belief, provided the source of the information and the grounds of belief are stated). The Rules of Court (see 16.1.1 below) contain detailed requirements as to the form and structure of affidavits. There are complicated rules concerning the form of the jurat and procedures for swearing or affirming the contents of an affidavit. A jurat (meaning ‘he or she swears’) is a statement at the end of an affidavit setting out the name of the deponent, their signature, where and when the affidavit was made, the name of the person who took (witnessed) the affidavit, and the signature and title (or description) of the person who took the affidavit. Affidavits may annex or exhibit documents to which they refer, depending on the jurisdiction. Affidavits are required to be filed and served before they may be used in proceedings. The maker of an affidavit may also be required to attend court for cross-examination. The courts have power to prevent scandalous and irrelevant affidavit material making its way into the court file. Alterations or erasures to affidavits must be authenticated by appropriate procedures. Non-compliance with the rules governing affidavits can be sanctioned with leave of the court. Effective affidavits are built on the exercise of drafting skills. Brevity, style and attention to detail should be the hallmarks of an affidavit. Affidavits are always a reflection of the writer’s ability to gather and present evidence in written form. But never forget that an affidavit is a statement of the deponent, not their lawyer.