Summer 2020 dsba.ie Susan Martin is principal of Martin Solicitors. She is a Council member of the DSBA
the case to Court is coherent, properly set out and correct in form. Taking the instant situation into consideration, given our occupational exposure to Affidavits as practitioners, we perhaps sometimes become too casual about them and delegate to others what is properly the business of practitioners vi ., the putting of matters into evidence. A slip can easily arise from, say, an Affidavit of Service or a rounding Affidavit for a routine application unless monitored carefully. Precedents are a good framework and a very present help in times of trouble. We can, however, place too much reliance on them. Indeed, the Court in the above judgment cautioned about the use of the dreaded precedent. “...affidavits are often treated as standard form documents where, time and time again, the same prolix paragraphs are replicated in affidavits sworn by practitioners without regard to the particular facts of an individual case.”
What Can we do to Get Our Affidavits Right? Use precedents from the Rules of Court • Consider the matters to be put into evidence carefully and critically; ensure your client can stand over each of the averments. • Avoid repetition and prolixity in the body of the Affidavit Cross check dates against instructions on the le Check the Affidavit carefully and ensure that each of the exhibits is attached to the various exhibit sheets. The exhibit should be well presented and clear and legible and be complete. • Check the jurat clause and ensure it is in the correct format e.g. says before me and not in the presence of nsure you have a ling clause • After the Affidavit has been sent to the client for swearing and been returned, check again to ensure that the jurat is complete and all exhibits have been signed and dated.
Litigation
A Last Word about Wasted Costs Orders Wasted costs orders ought to strike fear into the heart of every practitioner. To coin a phrase from Lord Denning, we should consider them the nuclear weapons in the arsenal of costs orders and seek to avoid them. If we as practitioners are doing our job, in the ordinary course of events such orders should not arise. Wasted costs orders are powerful. In the words of Hogan J in o v in for ustice 1 I C 1 “..would it be in the public interest that the creativeness and inventiveness of the legal profession should be stifled or that much cherished independence thwarted by the threat of a wasted costs order. If that were so, then there would be a real danger that the wasted costs procedure - or even the threat of it would become an instrument of oppression in the hands of the wealthy or the powerful or the vested interests who, for example, feared legal change being brought about by ground-breaking litigation.” That said, access to Court is a privilege and ought not to be taken up by those engaging in frivolous or vexatious litigation. Litigation needs to be conducted in accordance with the rules in order to prevent the Court’s time being wasted or to compel the other party to spend a lot of money defending doomed proceedings. This does not mean that in every case brought which fails that the practitioner has done anything incorrectly cases fail all the time and the litigant is entitled to his day in Court. This was illustrated in a Circuit Court Appeal before Meenan J on 2nd December 2019 where he said “if every claim dismissed were to lead to allegations of misconduct on the part of the solicitor, that would be an extraordinary situation”. See report rish ndependent 1 19 Accordingly, it is best for the practitioners to conduct litigation carefully and in accordance with the Rules of Court. P
To coin a phrase from Lord Denning, we should consider them the nuclear weapons in the arsenal of costs orders and seek to avoid them
the Parchment 31