Personal injury actions are conducted through formal legal documents called ’pleadings’ which must follow a format prescribed by court rules. It is a legal requirement that, in all personal injury actions any pleading containing an assertion or allegation must be supported by an ‘Affidavit of Verification’¹. An assertion is a statement of fact or belief, and an allegation is a claim that someone has done something. An affidavit is a sworn statement in writing. It has the same weight in law as evidence that is given on oath in Court.

What is an Affidavit of Verification?

An Affidavit of Verification is a sworn legal document. The person swearing an affidavit is called a ‘deponent’. For an Affidavit of Verification, the deponent confirms that the assertions or allegations in the particular pleading, to which the affidavit refers, are true and accurate. The purpose of an Affidavit of Verification is to ensure that pleadings do not contain unfounded allegations or assertions which cannot be supported by oral evidence at the trial. An Affidavit of Verification thus confirms that the content of the pleading, to which it refers, is true and accurate.

Is an Affidavit of Verification important?

An Affidavit of Verification is essential as it is required by law to progress the pleadings in the case. For example, if the plaintiff does not swear and file an Affidavit of Verification in relation to their Personal Injuries Summons, an application can be made by the defence asking the court to stay or dismiss the case because of the failure to deliver an Affidavit of Verification₂. If the defendant does not deliver an Affidavit of Verification in relation to their Defence, the plaintiff can ask the court to strike out the defence to the proceedings. If this occurs, the case would proceed on an undefended basis.

If a deponent knows that any of the assertions or allegations in the pleading are false or misleading and yet they swear an Affidavit of Verification as to its correctness, that person is guilty of an offence. When swearing an Affidavit of Verification, the deponent is required to swear that they are aware that the making of a false or misleading statement is an offence. The penalty for making such a false Affidavit of Verification is a fine not exceeding €100,000 and/or a term of imprisonment not exceeding 10 years³.

How do I swear an Affidavit of Verification?

The deponent normally goes to an independent solicitor or Commissioner for Oaths to have the Affidavit of Verification sworn. The independent solicitor will check with the deponent that they have read through and fully understand the content of the Affidavit of Verification. The deponent will be asked to swear by means of an oath, on the appropriate religious text such as a bible, and will be asked to repeat the words of the oath. Alternatively, the deponent can make an affirmation if he/she does not wish to swear on a religious text. The deponent will then sign the Affidavit of Verification in front of the solicitor and the jurat⁴ will be completed by the independent solicitor. The Affidavit of Verification will then be filed in court by the solicitor acting for that party.

When do I swear an Affidavit of Verification?

The Affidavit of Verification should be sworn and filed in court within 21 days of the service of the relevant pleading⁵. The claimant, in personal injury actions, will be required to swear an Affidavit of Verification in relation to the personal injuries summons, the replies to particulars and any claim for out-of-pocket expenses known as ‘special damages’. A party on behalf of the defendant, or State authority, will be required to swear an Affidavit of Verification in relation to the defence filed in the proceedings.

Who should swear the Affidavit of Verification for the defendant?

The person designated to swear the Affidavit of Verification for the defence on behalf of a State authority should have:

• the authority of the State authority to do so
• a good knowledge of the issues in dispute in the case and
• have read through and approved the defence in the proceedings.

The Defence is drafted based on the information, statements and documents provided, and thus any allegations or assertions, included in a draft Defence, will be drawn from that information. In a complex claim there may be a liability consultation to review the draft Defence, which gives the deponent an opportunity to satisfy themselves that any allegations or assertions are supported by evidence.

Key takeaway

The Affidavit of Verification is an essential part of the pleadings in a personal injury action. If you have been asked to be a deponent and have any queries about the defence or the Affidavit of Verification, you should contact your State Claims Agency claims manager, who will arrange for the solicitor acting in the claim to answer your queries.

References available on request.