In Investohills Vesta v Petergrow Limited and others, the court had to consider, on an application by the claimant (Investohills Vesta), whether a sworn affidavit would be necessary in order to comply with with a worldwide freezing order (WFO). The judge (Nicholas Thompsell, sitting as a deputy High Court Judge) had to balance the current COVID-19 pandemic and the requirements of the CPR in relation to WFOs.
Investohills Vesta, the claimant, had obtained a WFO against Petergrow Limited and other parties on 1 December 2020. The WFO was continued at a hearing on 21 December 2020.
At the continuation hearing, it had been stressed by Investohills’ representatives that some of the respondents should have to confirm, in a sworn affidavit, disclosures that had been ordered to be made under the WFO. The problem arose with two of the respondents, one of whom was based in Ukraine, and the other in Cyprus.
There were obvious problems for these respondents in attending at a commissioner for oaths’ office in the United Kingdom, and it had been hoped that the respondents in the Ukraine and Cyprus could appear in front of a commissioner for oaths in the UK without having to travel (that is, by appearing remotely).
The continuation order of 21 December 2020 provided that, should the parties be unable to agree on the lawfulness of an oath being made by a video link, they would have the liberty to apply for further directions. This point was unable to be resolved, and the application before Thompsell J was made by the applicants, seeking an order that various respondents were required to provide a sworn affidavit.
The judge considered firstly whether an affidavit was necessary. The WFO, originally granted on 1 December 2020, had contained the usual provisions for the respondents to provide information about their assets. This was then to be followed up by an affidavit.
The judge commented that, although there is a requirement under PD 25A for such evidence to be supported by affidavit, there is no specific requirement in the PD for a respondent to confirm information by an affidavit. However, the example freezing injunction attached to PD 25A does include a requirement for the information to be backed up by affidavit. The judge therefore concluded that the current WFO did require that an affidavit be provided.
The second problem the judge considered was whether it was practical to provide an affidavit in this case. The judge considered the lockdown restrictions in various parts of the world, including Cyprus and Ukraine. He commented that it would not be possible to obtain a sworn affidavit in those countries due to the fact that it would be difficult to obtain a sworn affidavit from any form of notary.
The judge then considered whether it would be possible for the respondents to swear an affidavit remotely in the United Kingdom. To answer this question, the judge considered the Commissioners for Oaths Act 1889, and commented that this Act does not deal with the possibility of a remote video link, nor does it rule out remote swearing, due to the era of the Act.
The judge considered the case of Haederle v Thomas, which defined the essential nature of an affidavit. In that case, Nugee J stated that:
“the practice on taking an oath in respect of an affidavit is that the opponent has to appear in person before a commissioner for oaths and swear on the Bible or other holy book in front of the commissioner for oaths that the affidavit is true.”
However, the judge thought that it would be open to him to allow a commissioner for oaths to allow someone to swear an oath via a remote source. He was reluctant to order on this point, however, due to the fact that the arguments had not been tested by a full exchange in court.
On the balance of probabilities, the judge concluded that, to comply with the requirements to provide an affidavit would be very difficult for the Cypriot and Ukrainian respondents.
The judge then went on to consider the prejudice to Investohills of no affidavit being provided. He acknowledged that there were benefits to requiring an affidavit rather than a witness statement but that, due to the current pandemic, it was thought not to be of major importance when weighed up against the difficulties of compliance.
The evidence that had been provided to Investohills in this matter was in the form of witness statements. Those witness statements had contained a statement of truth.
The judge commented that penalties for contempt of court are in practice similar to those applied in relation to perjury, and it may be considered that a statement of truth and the risks in abusing a statement of truth “should be sufficient to concentrate the mind of those making the statements”.
Accordingly, the judge ruled in favour of the respondent.
Implications for practitioners
It has been clear over the last 12 months that a lot more needs to be taken into account when dealing with evidence in litigious matters. COVID-19 has caused many problems in litigation, not least with court hearings and communication between solicitors and clients.
Should the need arise for an affidavit to be signed, in the first instance a party should enter into conversation with opponents to see if a witness statement would suffice. Obviously, for some statutory reasons an affidavit or statutory declaration will always be required, but it is worth checking in the first instance with your opponents whether a witness statement will suffice.