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Affidavits and declarations may now be signed via video conference

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:

  1. 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
  2. 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.


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