District Court Rules

ORDER 50

AFFIDAVITS IN CIVIL PROCEEDINGS

1 Definitions

1. In this Order–

reference to an affidavit includes reference to any affidavit, solemn affirmation or the acknowledgment of any deed or recognizance for use in civil proceedings in the Court;

‘deponent’ means a person making an affidavit for use in civil proceedings in the Court, but includes reference to a person making a solemn affirmation or acknowledgment of a deed or recognizance for use in civil proceedings in the Court;

‘relevant document’ has the same meaning as in section 2 of the Statutory Declarations Act 1938.

2 Making an affidavit

2. (1) Subject to sub-rule (2), all affidavits for use in civil proceedings in the Court (which may be in the Form 50.01, Schedule C) must be made before a Commissioner empowered to administer oaths for the High Court, or a practising solicitor.

(2) Where the person making an affidavit resides outside the State, or is for the time being outside the State, the affidavit may be made before any person authorised by law to administer oaths in the place where the person making the affidavit resides or is.

3. Form of affidavit

3 All affidavits for use in civil proceedings in the Court must:

(a) be written or printed book-wise;

(b) be expressed in the first person of the deponent;

(c) be drawn up in numbered paragraphs; and

(d) include the title of the civil proceedings in which they are sworn.

4 Particulars of deponent and other requirements

4. All affidavits for use in civil proceedings in the Court must:

(a) state the deponent’s occupation and (unless the Court otherwise orders or permits) place of residence;

(b) state that the deponent is over 18 years of age, but if the deponent is under 18 years of age, the affidavit must state the deponent’s exact age;

(c) be confined to such facts as the deponent is able to prove of his or her own knowledge;

(d) state the deponent’s means of knowledge of the facts sworn, except on interlocutory motions, on which a statement by the deponent as to his or her belief, and the grounds of his or her belief, may be admitted.

5 Affidavit may not be sworn before solicitor for party

5. No affidavit may be used in civil proceedings in the Court if it was sworn before the solicitor acting for the party on whose behalf the affidavit is to be used, or before the partner, agent, correspondent or clerk of that solicitor, or before the party himself.

6 Attestation by person taking affidavit and jurat

6. Every person taking an affidavit for use in civil proceedings in the Court:

(a) must express the date on which and the place at which he or she takes the affidavit; otherwise the affidavit must be taken not to be authentic and must not be filed without the permission of the Court;

(b) must certify in the jurat either:

(i) that he personally knows the deponent, or

(ii) that the deponent has been identified to him or her by some person personally known to him or her and named in the jurat who certifies his personal knowledge of the deponent, or

(iii) that the identity of the deponent has been established by him or her by reference to a relevant document containing a photograph of the deponent before the affidavit was taken,

and in a case to which paragraph (iii) applies, must give particulars of the relevant document concerned.

7 Additional requirements for affidavit by illiterate or blind person

7. (1) When an affidavit for use in civil proceedings in the Court is sworn or made by a person who appears to the person taking the affidavit to be illiterate or blind, the person taking the affidavit must certify that:

(a) the affidavit was read in his or her presence to the deponent;

(b) that the deponent appeared to understand it, and

(c) that the deponent made his or her signature or mark in the presence of the person taking the affidavit.

(2) No affidavit mentioned in sub-rule (1) may be used in evidence in the absence of the certificate mentioned in sub-rule (1) unless the Court is otherwise satisfied that the affidavit was read over to, and appeared to be understood by, the deponent.

8 Making an affidavit in a foreign language

8. (1) Subject to rule 9, where an intending deponent is not capable of making an affidavit in one of the official languages of the State, he or she must make an affidavit in another language which he or she understands (in this rule and rule 9 referred to as a ‘foreign language affidavit’).

(2) A foreign language affidavit must be translated into one of the official languages of the State by a translator who is suitably qualified for the purpose.

(3) Where a foreign language affidavit is to be filed in Court, an affidavit of the translator must be filed at the same time in which:

(i) the translator sets out his or her qualifications as a translator,

(ii) a copy of the foreign language affidavit and the original translation referred to in sub-rule (2) are exhibited, and

(iii) the translator confirms that the translation is accurate.

(4) The original translation referred to in sub-rule (2) must in addition be filed with the affidavit of the translator referred to in sub-rule (3).

9 Additional requirements for swearing and filing a foreign language affidavit

9. (1) Where the deponent appears to the person taking an affidavit not to be capable of understanding one of the official languages of the State, the person taking the affidavit must:

(a) ensure that the affidavit is made as a foreign language affidavit in accordance with rule 8; and

(b) ensure that the affidavit is read to the deponent by a suitably qualified interpreter in the presence of the person taking the affidavit, and that the deponent has fully understood it; and

(c) certify in the jurat that the affidavit was read in his or her presence to the deponent by a suitably qualified interpreter, that the deponent fully understood it and that the deponent signed the foreign language affidavit in his or her presence.

(2) Where a foreign language affidavit is to be filed in Court, in addition to the translator’s affidavit referred to in rule 8(3) an affidavit of the interpreter must be filed at the same time in which the interpreter sets out his qualifications as an interpreter, exhibits a copy of the foreign language affidavit and confirms that he or she read accurately to the deponent the contents of the foreign language affidavit.

(3) Where the translator and interpreter are one and the same person, a single affidavit may be sworn by that person for the purposes of rule 8(3) and this rule.

(4) No foreign language affidavit may be used in evidence in the absence of the affidavit referred to in rule 8(3), unless the Court is otherwise satisfied as to the evidence contained in the foreign language affidavit.

10 Filing clause

10. (1) There must be included in every affidavit a footnote showing:

(a) on whose behalf it is filed, and

(b) the person by whom it is filed and his address.

(2) No affidavit may be filed or used without the note mentioned in sub-rule (1) unless the Court otherwise directs.

11 Amendments

11. An affidavit which has in either the body or the jurat any interlineation, alteration, or erasure, may not be filed, read, or made use of in any civil proceeding in the Court without the permission of the Court unless:

(a) the interlineation or alteration (other than by erasure) is authenticated by the initials of the person taking the affidavit; or

(b) in the case of an erasure, the words or figures appearing at the time of taking the affidavit and erased are re-written and signed or initialled in the margin of the affidavit by the person taking it.

12 Power of Court to receive defective affidavit

12. The Court may receive any affidavit sworn for the purpose of being used in civil proceedings in the Court:

(a) despite any defect by misdescription of the parties or otherwise in the title or in the jurat; or

(b) despite any other irregularity in its form,

and where the Court does so, it may direct a memorandum to be made on the document that it has been so received.

13 Filing of affidavits

13. (1) Before an affidavit is used in civil proceedings in the Court, it must be filed with the Clerk.

(2) sub-rule (1) does not prevent the Judge from making an order on the undertaking of the applicant or his solicitor to file any affidavit sworn before the making of the order, or permitted by the Judge to be made after the order, provided that the Judge may stay the issue of any order until the affidavit has been filed.

14 Date of filing

14. The Clerk must endorse on every affidavit which is filed for use in civil proceedings in the Court the date on which the affidavit was filed.

15 Affidavit may not be used after limited time without permission

15. Where a special time is limited for delivering or filing an affidavit, no affidavit delivered or filed after that time may be used without the permission of the Court.

16 Exhibits

16. (1) Documents identified by or referred to in an affidavit must not be annexed to the affidavit, but must be referred to in the affidavit as exhibits.

(2) Every certificate on an exhibit referred to in an affidavit signed by the person before whom the affidavit is sworn must be marked with the short title of the civil proceedings.

(3) Nothing in this rule requires or authorises any marking on an original will which has not been admitted to probate.

17 Costs of affidavit

17. The Court may order that a party must bear the costs of any affidavit which he or she has used which:

(a) unnecessarily contains matters of hearsay, or

(b) which contains argumentative matter, or

(c) which is of unnecessary length,

regardless of the outcome of the hearing at which it is used.

18 Court or party may require attendance of deponent

18. (1) The Court may direct the deponent to any affidavit to attend at the trial or hearing at which the affidavit is to be used, where it considers the deponent’s attendance necessary in the interests of justice.

(2) Unless the Court has ordered otherwise, a party may, by written notice served on the party relying on the affidavit concerned at least seven days before the trial or hearing, require the deponent to any affidavit to attend at the trial or hearing at which the affidavit is to be used, for the purpose of being cross-examined.

(3) In any case mentioned in sub-rule (1) or sub-rule (2) in which the deponent does not attend at the trial or hearing, the affidavit may not be used, unless the Court orders otherwise.

[SI 17/14]

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