An affidavit is a sworn written statement from a witness in a case. It is a document that sets out the evidence that the witness wants to give. The witness who swears an affidavit is known as a deponent. Affidavits are sometimes written and prepared by a solicitor or a barrister after they get all the necessary information from the witness.
When the affidavit is ready, the witness normally goes to an independent Commissioner for Oaths or practising solicitor who will verify the affidavit. They will check that the person swearing the oath has read the affidavit and fully understands its contents. The witness will be asked to raise an appropriate religious text to their beliefs such as the Bible and to repeat the words of the oath. If the witness does not want to swear an oath on the Bible, they can make an affirmation. The witness then signs the affidavit.
From 31 March 2021, it is possible to swear affidavits for use in the High Court, Court of Appeal or Supreme Court by video-conference.
The Commissioner for Oaths will verify that the affidavit was properly sworn by completing and signing a jurat on the affidavit. The affidavit can then be submitted as evidence to the court. To do this, you lodge the affidavit with the appropriate court office (paying the relevant fee to lodge it) and send a duplicate to the other party in the case.
Some cases do not involve an oral hearing with witnesses giving evidence in court. Instead, these cases are dealt using only affidavits. For example, if the plaintiff issues a summary summons, it will be accompanied by an affidavit setting out the facts of the case. The defendant can then respond by affidavit. The judge may be able to decide the case by reading the affidavits, which is a quicker and less expensive procedure.
An affidavit must include:
- The title of the case
- The identity of the person making the affidavit
- The occupation and address of the person making the affidavit
- A statement that the witness is over 18 years of age or, if they are not over 18, the age of the witness
- The evidence, which must generally be facts that the witness is able to prove of their own knowledge. It must also state how they got this knowledge.
- The signature of the witness and the date they signed it
- A jurat, which is a section on the affidavit where the Commissioner for Oaths or practising solicitor verifies and signs that the affidavit was properly sworn
The evidence the witness gives must be set out clearly in numbered paragraph format. The language can be less formal than the language used in formal pleadings.
The rules for affidavits are set out in the court rules for the Superior, Circuit and District courts.
Swearing by video-conference
From 31 March 2021, it is possible to swear affidavits for use in the High Court, Court of Appeal or Supreme Court by video-conference where it is not practicable for the witness to attend in person with the Commissioner for Oaths or practising solicitor who is to verify the affidavit. It may not be practicable due to travel restrictions or some other issue, including health issues, which affect the ability to meet in person. The reason for the inability to meet must be set out in the affidavit.
When swearing an affidavit by video-conference:
- The Commissioner for Oaths or practising solicitor must have a copy of the affidavit itself, any documents being attached to it (exhibits), and an identification document for the witness
- Both Commissioner for Oaths or practising solicitor and the witness must be able to see and hear one another
- The Commissioner for Oaths or practising solicitor must confirm that an appropriate religious text is available to the witness
- The deponent must go through every page to be included in the affidavit and make the necessary oath
- The jurat will state that the affidavit was made by video-conference
The affidavit is then sent to the Commissioner for Oaths or practising solicitor who confirms compliance and countersigns the affidavit.
When swearing an affidavit in person or by video-conference, the steps involved should be explained to you by the Commissioner for Oaths or practising solicitor.
You need to pay a fee to lodge an affidavit with the relevant court office. This fee is €15 for the District Court and Circuit Court and €20 for the High Court and Supreme Court.
Your solicitor and barrister will also charge fees for their services as may the solicitor or Commissioner for Oaths who verifies the affidavit.
You should get legal advice for more detailed information.