Thursday, January 5, 2012

The Issue of Non English Speaking Deponents Swearing Affidavits

A recent article in the Law Society Gazette by David Boughton, a practicing barrister, explores the difficulties encountered by solicitors when swearing affidavits of clients who cannot understand English. He draws attention to a prevalent issue. No provision has been made for any procedure of swearing and filing of affidavits by litigants who speak little or no English in neither rules of court nor legislation as noted by Cooke J of the circumstances of ANM v Refugee Appeals Tribunal. 

The author notes the decision of Cooke J in Saleem v Minister for Justice in deciding on the striking out of an affidavit, which contained an error of communication. The judge recommended, given that the applicant did not speak English at all, the approach of a further procedure to be followed for the swearing of affidavits by such persons. It followed that the affidavit should be sworn in the language the deponent speaks and should then be translated by an appropriately qualified translator with both the original and translated document to be put in evidence as exhibits to an affidavit in English sworn by the translator. This was since adopted in the English courts in 1998.

This "three affidavit" procedure is now in use here in Ireland although some difficulties are obvious - such as the additional cost and expense of translation. Boughton warns though, that a failure to adhere to this procedure may require that proceedings be adjourned  to facilitate the filing of correct affidavits, and with adjournment orders attributing more costs he advises all practitioners to familiarise themselves with the procedures. 

Brophy Solicitors 

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