By Andrew Steele and Jacque Lethbridge - 20 Apr 2020
The Covid-19 lockdown and mandatory distancing rules prevented
affidavits and declarations from being signed 'in person' or before
a solicitor.
The Contract and Commercial Law Act 2017 which gives legal
effect to most electronic transactions and legal documents does not
apply to documents given on oath such as affidavits and statutory
declarations.
From 16 April 2020, the Government enacted temporary legislation
to cure the problem under the long-winded title: Epidemic Preparedness (Oaths and Declarations Act
1957) Immediate Modification Order 2020.
This new law allows an oath, affirmation or a declaration to be
taken using an audio visual or audio link (i.e. by telephone)
instead of being taken 'in the presence' of the person swearing the
oath or making the affirmation or declaration.
There are two conditions:
- the person administrating the oath must be satisfied that the
person swearing or making the oath or affirmation signed the
document concerned in the course of the audio visual or audio link;
and
- as soon as practicable after signing the document, the person
must send the signed document (or a photograph or scan of the
signed document) to the administrator for the signature of the
administrator.
The modifications also enable a declaration to be taken by an
officer or employee of an entity (which includes companies,
partnerships and individuals) provided they are authorised by the
entity and only if an enactment authorises or requires the
declaration to be provided to the entity.
This means that despite the impact of isolation and social
distancing, the business of law can proceed which is particularly
important given the Chief High Court Judge has confirmed that
business in the High Court will be running at near to full capacity
for civil litigation in level 3 of the lockdown.
If you have any queries regarding the application of the new
rules, then please contact any of our team at Martelli McKegg. In relation to
swearing/affirming affidavits, please contact anyone in our litigation
team for assistance.