Covid has transformed our relationship with digital technology in ways we never would have imagined. Working, going to school, seeing our GP, visiting loved ones in hospital or a care home are all things we now routinely do remotely via a range of digital platforms, internet connection permitting.
The law generally trails behind technology but the English courts have embraced remote hearings with impressive enthusiasm and speed. The recent case of Investohills Vesta v Petergrow & Ors1 (in which James Ramsden QC of Astraea Group appeared for Investohills) presented the Courts with an opportunity to apply this enthusiasm to the swearing of affidavits.
Background
Investohills Vesta LLC, a financial company, had previously obtained a Worldwide Freezing Order against 29 separate defendants and Chabra respondents located in multiple jurisdictions. Several of the respondents were ordered to provide the court with information in the form of an affidavit.
An affidavit, like a witness statement, is a means for a party in litigation to provide factual evidence to the court. A person who gives or "swears" an affidavit (known as a 'deponent') must sign a statement of authentication ('jurat') before a suitably qualified professional such as a commissioner for oaths, barrister, practising solicitor or notary, among others.
Affidavits can, in principle, be sworn anywhere in the world, provided that the deponent does so either before a practising solicitor of England and Wales or in accordance with their own country's laws. Oaths are typically sworn in person, although the law governing the swearing of oaths, which pre-dates Covid by more than a century, neither expressly includes nor rules out the possibility of swearing an oath remotely.
On the facts
In response to the court order, two of the respondents in Cyprus, and one in Ukraine, filed witness statements instead of affidavits. They explained that this was due to current Covid lockdown measures and travel restrictions which caused "severe difficulties" in complying with the affidavit requirements.
Investohills argued that as the relevant legislation does not expressly prohibit the swearing of oaths by video link, and in light of the current logistical difficulties, the deponents ought to be required to appear remotely before a commissioner for oaths or other qualified professional.
Conclusion
Although the judge was sympathetic to this argument, he was reluctant to determine the point at an interim hearing in view of the potentially "large implications across a range of practice areas" and felt that that the matter should be "tested by a full exchange in court".
Although the application was refused, the door to remote swearing of affidavits has been unlocked, if not fully opened. The judge noted that "a strong argument" can be made for allowing the remote swearing of affidavits and that he "hoped" this could be accomplished without legislative intervention, either by a change to civil procedure or a future court ruling.
Astraea Group has particular expertise in the obtaining and enforcement of complex interim asset freezing and search and disclosure orders, particularly across different jurisdictions. If you need advice in relation to any of the legal issues discussed in this article, please give us a call or send an email.
Footnote
1.Investohills Vesta v Petergrow Limited [2021] EWHC 124 (Ch)
Originally published 24 March 2021
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
