When You Shouldn’t Ask Your Solicitor to Swear an Affidavit

Parties to litigation are sometimes uncertain about the circumstances in which evidence on affidavit (sworn statement) concerning aspects of the case must be given by the party himself or herself (or by a duly authorised officer of a body corporate which is a party) and when a solicitor retained by the party can properly swear an affidavit on the party’s behalf. The answer is straightforward. An affidavit can only properly be accepted as evidence where the court can be satisfied that the person swearing it has “means of knowledge” of the facts set out in the affidavit. Where a solicitor has direct personal knowledge of all of the facts set out, he or she can safely swear an affidavit on a client’s behalf. If the solicitor does not, asking the solicitor to swear is extremely unwise.