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Produced in partnership with Phillip Patterson of Hardwicke Chambers
This Q&A has been drafted assuming the following:
• the question is asked in the light of the ongoing coronavirus (COVID-19) crisis
• the statutory declaration is intended to be administered prior to 1 October 2020
• the statutory declaration is one which falls within the scope of the Statutory Declarations Act 1835
• the statutory declaration is being administered in one of the following contexts:
◦ a company entering a members’ voluntary liquidation—section 89 of the Insolvency Act 1986
◦ a company entering administration—the Insolvency (England and Wales) Rules 2016 (IR 2016), SI 2016/1024, r 3.17
Prior to the restrictions imposed by the government to tackle the spread of coronavirus, there was something of an unresolved debate concerning the question of whether a solicitor administering a statutory declaration was required to be physically present with the person giving the declaration.
The social-distancing measures drew this debate into sharp focus with a significant number of practitioners seeking to use video conferencing facilities such as Zoom and Skype to administer statutory declarations. In response a Temporary Insolvency Practice Direction (TIPD) was produced which, among other things deal with this issue. The TIPD observes that administering a statutory declaration may (without committing to the proposition) be defective, but that IR 2016, SI 2016/1024, r 12.64 may be used to waive the defect provided substantial prejudice has not been caused to creditors by administering the statutory declaration in this way. A methodology is then set out which if followed, it is said, will ensure that substantial prejudice is not caused.
Applying that reasoning to the question here, the answer must be largely dependent on the facts. It is certainly conceivable that substantial prejudice might be caused in circumstances where the solicitor administering the statutory declaration and the solicitor advising the person giving the declaration live in the same house, but it does not seem to be inevitable that substantial prejudice would result.
The more significant problem appears to be presented by CPR PD 32, para 9.2. This provides that an affidavit must be sworn by a person independent of the parties or their representatives. This is generally thought to be a rule of broader application which includes the administration of statutory declarations. The issue raised by this question is whether the person administering the statutory declaration in this scenario is independent of the party’s legal representative. If the solicitors in the example live together because they are married, related by birth or cohabiting, those solicitors could not credibly be said to be independent. Conceivably, the solicitors may live together as tenants of different parts of a property (such as under a flat sharing arrangement) and could perhaps argue in those circumstances that they were independent. Even in those circumstances, by no means it is certain that the solicitors could successfully argue that they were independent.
As a result, save in a small range of circumstances, it would not be advisable for a solicitor to administer a statutory declaration for the client of a solicitor with whom they lived.
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