Can Affidavits Be Sworn Via Zoom?

Can Affidavits Be Sworn Via Zoom?

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In a recent Supreme Court decision which will have general interest, a novel if eccentric attempt by a Defendant to swear an affidavit via a Zoom call was rejected.

In, HSBC Bank of Bermuda Limited v Ambiance Holdings Ltd. & Carlton Simmons [2022] SC (Bda) 81 Civ (28 October 2022), MJM Limited appeared for receivers, acting on behalf of the Bank, and were seeking to strike out affidavit evidence submitted by a defendant (referred to below as the “Defendant”) on the basis of a number of irregularities. MJM are instructed in relation to proceedings seeking a declaration that leases granted by commercial borrower to his own wholly owned corporate vehicle are void which will go to trial next year.

The Defendant was ordered to file evidence in response to the Bank’s summons. In addition to a variety of other issues, the jurat of his affidavit, or portion of the affidavit that identifies when, where and before whom it was sworn, notably stated that it was sworn in Bermuda before a commissioner for oaths or notary public. The person before whom it was sworn was an attorney in Bermuda. The Defendant admitted that he was overseas when he signed the affidavit but had done this via a video call with the attorney. This made it obvious that contrary to the statement in the jurat he could not have sworn it in person before an attorney in Bermuda.

The Bank applied to strike out the affidavit on numerous grounds, including that because of these issues it failed to comply with requirements of the Rules of the Supreme Court Order 41/1(8) “the jurat must be completed and signed by the person before whom it is sworn” and the related requirement of section 10 of the  Commissioners for Oaths and Notaries Public Act 1972: “Every notary public and commissioner for oaths before whom any oath or affidavit is taken or made under this Act or other statutory provision shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.”

The effect of the above is that an affidavit may not be sworn remotely before an attorney in Bermuda.

In the hearing, the Defendant’s attorney presented the novel argument that although the Defendant was overseas and that the attorney before whom the jurat said to have been sworn via a Zoom call was in Bermuda, she ‘deemed the Defendant present in Bermuda electronically’.

The attorney attempted to rely on the section 11 of the Electronic Transactions Act 1999 which permits signatures to be electronic, section 14 which permits documents signed electronically to be admitted in evidence and the Commissioners for Oaths and Notaries Public (Electronic Notarization) Rules 2021 which permit documents to be notarised via a video call, provided the person attending the call is present in Bermuda.

The Court rejected the Defendant’s argument that it is possible to swear an affidavit remotely via a video call while exercising its discretion under the Rules of the Supreme Court Order 41/4 to allow part of the affidavit evidence. However, it made clear that in doing so it did not intend to set a precedent and that the Rules of the Supreme Court still do not permit someone to be ‘electronically present’ in Bermuda for the purpose of swearing an affidavit.