Affidavit

Affidavit meaning

An affidavit is a written statement that is made voluntarily by an individual and is signed and sworn under oath. It is often used as evidence in court cases and legal proceedings to support the facts presented. Affidavits can also be used for other legal purposes, such as proof of identity or attesting to the authenticity of a document. They must be notarised or signed in the presence of a person authorised to administer oaths. The main purpose of an affidavit is to provide a factual representation of an event or situation and to establish the credibility of a witness. It is important to take the process of drafting and signing an affidavit seriously as any false information or inaccurate details can have serious legal consequences. Affidavits are structured very similarly to witness statements, with the exception that they contain a jurat rather than a statement attesting to the truth.

Why use a Affidavit and not witness statement?

In the UK legal system, an affidavit and a witness statement both serve as a means of presenting statements of fact in legal proceedings. However, there are key differences between the two. An affidavit is a formal sworn statement made under oath before a Commissioner of Oaths or a Notary Public. It carries the same weight as evidence given in court and is therefore a powerful tool. On the other hand, a witness statement is a statement of fact made by a witness outside of court and is typically signed and dated. While a witness statement may be admissible in court as evidence, it is not given under oath and does not carry the same level of certainty and credibility as an affidavit. Thus, if one wants to ensure that their statements carry the most weight in a legal proceeding, it is advisable to use an affidavit.

Use of Affidavits

Affidavits were the primary mechanism through which evidence was presented to the court in interim petitions prior to the implementation of the Civil Procedure Rules (CPR). However, witness statements are now generally used instead of affidavits, with a few exceptions. Affidavits are still required in certain limited circumstances, including the following:

  • an application for a search order,

  • an application for a freezing order, or

  • an application for an order requiring an occupier to permit another person to enter their land.

In the event that it is mandated by the court, the CPR, a practise direction (PD), or a piece of law (for instance, section 3(5)(a) of the Protection from Harassment Act of 1997), disclosure by affidavit must take place.

Disadvantages of using Affidavits

Using affidavits as evidence can have several disadvantages. Firstly, affidavits are limited to the personal knowledge and experience of the witness, which may not provide a complete picture of the situation in question. Additionally, affidavits are often prepared by lawyers or other legal professionals, which can result in overly technical and legalistic language that may be difficult for judges or juries to understand. Apart from this, there is also a risk of perjury, as the person signing the affidavit swears to its accuracy under penalty of law. Moreover, there is a lack of cross-examination of the witness, which is a vital aspect of the adversarial legal system. Lastly, affidavits may not carry the same weight as live testimony and can be challenged as hearsay evidence.

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