Part 30 – Affidavits

Affidavit evidence

30.1

1. The court may require evidence to be given by affidavit instead of, or in addition to oral evidence.
2. In this Part –
   • “deponent” means the maker of an affidavit.
3. Whenever an affidavit is to be used in evidence, any party may apply to the court for an order requiring the deponent to attend to be cross-examined.
4. Such an application must be made not less than in the case of –
   1. a trial – 21 days; or
   2. any other hearing – 7 days; before the date of the hearing at which it is intended to cross-examine the deponent.
5. If the deponent does not attend as required by the court order, the affidavit may not be used as evidence unless the court permits.
6. The general rule is that an affidavit must be filed before it may be used in any proceedings.
7. In a case of urgency the court may make an order on an affidavit which 5 has not been filed if the party tendering it undertakes to file it.

Form of affidavit

30.2

1. Every affidavit must –
   1. be headed with the title of the proceedings;
   2. be divided into paragraphs numbered consecutively;
   3. be in the first person and state the name, address and occupation of the deponent and, if more than one, of each of them;
   4. be marked on the top right hand corner of the affidavit (and of the backsheet) with –
      1. the name of the party on whose behalf it is filed;
      2. the initials and surname of the deponent;
      3. (where the deponent swears more than one affidavit in any proceedings), the number of the affidavit in relation to the deponent;
      4. the identifying reference of each exhibit referred to in the affidavit;
      5. the date when sworn; and
      6. the date when filed;
         • (Example “Claimant: N. Berridge: 2nd: NB 3 and 4:1.10.98: 3.10.98.”) and
   5. state if any deponent is employed by a party to the proceedings.

Contents of affidavits

30.3

1. The general rule is that an affidavit may contain only such facts as the deponent is able to prove from his or her own knowledge.
2. An affidavit may contain statements of information and belief –
   1. if any of these Rules so allows; and
   2. if the affidavit is for use in an application for summary judgment  under Part 15 or any procedural or interlocutory application, provided that the affidavit indicates –
      1. which of the statements in it are made from the deponent’s own knowledge and which are matters of information or belief; and
      2. the source of any matters of information and belief.
3. The court may order that any scandalous, irrelevant or otherwise oppressive matter be struck out of any affidavit.
4. An affidavit containing any alteration may not be used in evidence unless all such alterations have been initialed both by the deponent and the person before whom the affidavit is sworn.

Documents to be used in conjunction with affidavits

30.4

1. Any document to be used in conjunction with an affidavit must be exhibited with it.
2. If there is more than one such document those documents may be included in a bundle which is arranged chronologically or in some other convenient order and is properly paginated.
3. Clearly legible photocopies of original documents may be exhibited, provided that the originals are made available for inspection by the other parties before the hearing and by the court at the hearing.
4. Each exhibit or bundle of exhibits must be —
   1. produced to and verified by the deponent;
   2. accurately identified by an endorsement on the exhibit or on a certificate attached to it signed by the person before whom the affidavit is sworn or affirmed; and
   3. marked in accordance with rule 30.2(d).

Making of affidavits

30.5

1. An affidavit must –
   1. be signed by all deponents;
   2. be sworn or affirmed by each deponent;
   3. be completed and signed by the person before whom the affidavit is sworn or affirmed; and
   4. contain the full name, address and qualifications of the person before whom it is sworn or affirmed.
2. The statement authenticating the affidavit (“the jurat”) must follow immediately from the text and not be on a separate page.
3. An affidavit may not be admitted into evidence if sworn or affirmed before the legal practitioner of the party on whose behalf it is to be used or before any agent, partner, employee or associate of such legal practitioner.
4. If it appears that the deponent is illiterate or blind, the person before whom the affidavit is sworn or affirmed must certify in the jurat that the –
   1. affidavit was read to the deponent by him or her in his or her presence;
   2. deponent appeared to understand it; and
   3. deponent signed or made his or her mark in his or her presence.
5. A person may make an affidavit outside the jurisdiction in accordance with –
   1. the law of the place where the affidavit is made; or
   2. this Part.
6. Any affidavit which purports to have been sworn or affirmed in accordance with the law and procedure of any place outside the jurisdiction is presumed to have been so sworn.

Service of affidavits

30.6

1. The general rule is that a party who is giving evidence by affidavit must serve a copy of the affidavit on every other party.
2. The general rule applies whether the affidavit was made in the pro­ceedings or in some other proceedings.
3. The general rule does not apply if the affidavit is being used in support of an application that may be made without notice.