Affidavits

General

On any petition, motion or application evidence may be given by affidavit.  The court may order the production for cross-examination, of the person making any such affidavit.

All affidavits shall be filed in the central office.  Those used in minor and wards of court matters are filed in the Wards of Court office.  Affidavits in bankruptcy matters are filed in the Examiner ’s office.  Affidavits in non-contentious probate matters are filed in the probate office.

Every affidavit is to be entitled in the cause or matter in which it is sworn.  Where there is more than one claimant or defendant, it is sufficient to state the full name of the first claimant or defendant and other defendants or claimant as the case may be.

Affidavits shall be confined to such facts as the witness is able of his own knowledge to assert.  They shall state his means of knowledge thereof. On interlocutory motions, statements may be made to the best of the deponent’s belief, with the grounds thereof.

The costs of any affidavit which shall unnecessarily set forth matters of hearsay or argumentative matters, copies of or extracts from documents, shall not be allowed.

Form and Structure

Every affidavit shall be drawn up in the first person and shall be divided into paragraphs.  Each paragraph should be numbered consecutively.  It shall as nearly as may be confined to a distinct portion of the subject matter. Every affidavit shall be written or printed book-wise.

Every affidavit shall state the description and true place of abode of the deponent.  Every affidavit of service shall state when, where, and how, and by whom, such service was effected.  In the case of delivery to any person, it shall state that the deponent was at the time of such delivery acquainted with the appearance of such person.

In every affidavit made by two or more deponents, the name of the persons making the affidavit shall be inserted in the jurat (swearing part).  There shall be endorsed on every affidavit a note, stating on whose behalf it is filed.

The Court may order to be struck out from any affidavit, any matter which is scandalous. It may order the costs of any application to be paid on a solicitor and client basis.

No affidavit having any interlineation, alteration or erasure shall be filed, read or used without leave of Court, unless the same(other than the erasure) is authenticated by the initials of the person taking the affidavit.  In the case of an erasure, words and figures appearing at the time of taking the affidavit to be written on the erasure must be re-written and signed or initialled in the margin of the affidavit by the person taking it.

Swearing / Making

Affidavits sworn in Ireland shall be sworn before a judge, commissioner for oaths, practising solicitor or officer empowered to administer oaths.  Every commissioner to administer oaths shall express the time when and the place where he takes an affidavit, or the acknowledgement of any deed, or recognisance. Otherwise, they shall not be held authentic, nor admitted to be filed or enrolled without the leave of the Court.

Every examination, affidavits, declaration, affirmation in a cause pending in the High Court or Supreme Court may be taken in any foreign country or place before any Irish diplomatic or consular representative or agent exercising his functions in that country or place.

When there is no such representative or agent or where they are not conveniently near to the deponent in such country or place, they may be taken before any notary public authorised to administer oaths in that country or place.  Where such country or place is a part of the British Commonwealth of Nations or a British possession, they may be taken before any judge, court, notary public or person authorised to administer oaths in such part or possession.

The Judges and officers of the High Court and of the Supreme Court shall take judicial notice of the seal and signature of any such diplomatic and consular agent, judge, court, notary public or other person subscribed to such examination, affidavit, declaration, affirmation, acknowledgement, or to any other deed or document.

The rules were amended in 2009 to provide that a person taking an affidavit may in the alternative to knowing or identifying a person who knows the deponent may establish the identity by reference to a relevant document containing a photograph of the deponent before the affidavit was taken.  Particulars are to be given of the relevant documents.

Where an intending deponent is not capable of making an affidavit in one of the official languages of the State, he shall make an affidavit in another language which he understands.  The foreign language affidavit shall be translated into one of the official languages of the State by a suitably qualified translator.

Where a foreign language affidavit is to be filed or lodged in court, an affidavit of the translator shall be filed setting out his qualifications, a  copy of the relevant foreign language affidavit and the original translation and confirmation that the translation is accurate.

Swearing and Filing Issues

Every person taking an affidavit shall certify, in the swearing part that he knows he deponent or some person named in the jurat who knows, certifies his knowledge of the deponent. Where the affidavit is sworn by any person who appears to be illiterate or blind, the officer shall certify that the affidavit was read in his presence to the deponent and that the deponent seemed perfectly to understand the same and that the deponent made his signature or mark in the presence of the officer.

The court may receive any affidavit sworn for the purpose of being used in any matter notwithstanding any defect by misdescription of parties or otherwise in the title or swearing part, or any other irregularity in the form. It may a memorandum to be made on the document that was so received.

Where the original affidavit is allowed to be used it shall, at the time when it is used, be delivered to and left with the proper officer who shall send it to be filed.

A copy of an affidavit may in all cases be used, provided the original has been filed, and the copy is duly attested.  A photocopy of an original affidavit which has been filed may be used, if certified by the solicitor who has filed the same to be a true copy and that the original has been filed.

No affidavit shall be sufficient if sworn before the solicitor acting for the party on whose behalf the affidavit is to be used, or before any agent or correspondent of such solicitor or before the party himself.

Where a special time limit is provided for filing affidavits, no affidavit filed after that time shall be used, unless by leave of the Court.

Where an injunction or order not to leave the jurisdiction has been granted or made, the party applying for such injunction or order shall furnish copies of the grounding affidavits for the same to any party affected upon demand

Except by leave of the Court, no order made ex parte in Court founded on any affidavit shall be of any force unless the affidavit on which the application was made was actually made before the order was applied for, and produced or filed at the time of making the application.

Where an injunction or order not to leave the jurisdiction has been granted or made, the party applying for such injunction or order shall furnish copies of the affidavits grounding the same to any party affected thereby upon demand and payment therefor at the rate specified.

Before the Master or the Examiner.

The party intending to use an affidavit in support of any application made before the Master or before the Examiner shall give notice to the other parties concerned of his intention in that behalf. All affidavits which have been previously made and read in Court upon any proceeding in a cause or matter may be used before the Master or the Examiner.

Every alteration in an account verified by affidavit to be used before the Master or before the Examiner shall be marked with the initials of the person before whom the affidavit is sworn, and such alterations shall not be made by erasure. Accounts, extracts from parish registers, particulars of creditors\’ debts, and other documents referred to by affidavit shall not be annexed to the affidavit or referred to in the affidavit as annexed, but shall be referred to as exhibits.

Every certificate on an exhibit referred to in an affidavit signed by the person before whom the affidavit is sworn shall be marked with the short title of the cause or matter.

Trial on affidavit

Within fourteen days after a consent to taking evidence by affidavit as between the parties has been given, or after an order has been made for such purpose, or within such time as the parties may agree, the Court may allow, the claimant shall file his affidavits and deliver to the defendant or his solicitor a list thereof.

The defendant, within fourteen days after delivery of such list, or within such other time as may be agreed or the Court may allow, shall file his affidavits, and deliver to the claimant or his solicitor a list thereof. Within seven days after the expiration of the fourteen day period or such other time as aforesaid, the claimant shall file his affidavits in reply. They are confined to matters strictly in reply.  They shall deliver to the defendant or his solicitor a list thereof.

When the evidence is taken by affidavit, any party desiring to cross-examine a deponent who has made an affidavit filed on behalf of the opposite party may serve upon the party filing the affidavit a notice in writing, requiring the production of the deponent for cross-examination.  The notice must be served at any time before the expiration of fourteen days next after the end of the time allowed for filing affidavits in reply, or within such time as the Court may allow;

Unless the deponent is produced accordingly, his affidavit shall not be used in evidence save with the leave of Court.  The party to whom notice is given above is entitled to compel the attendance of the deponent for cross-examination in the same way as he might compel the attendance of a witness.