Santander v Carlin & Hughes: The Truth, the Whole Truth and Nothing but the TruthOctober 21, 2013
The case of Santander v Carlin & Hughes  NICh 14 has recently come before the Northern Ireland High Court and affirmed the Court’s decision in Swift Advances Plc v James and Maureen McCourt  NI Ch 33. The recent judgment of Deeny J marks an important decision on the filing of affidavit evidence before the Court in Repossession actions. The decision also serves to highlight the gravitas attaching to the making of affidavits, which can all too often be overlooked. If a Court were to find that an affidavit deliberately containing untrue information has been lodged before it with the intention of misleading the Court then the deponent is liable to be found guilty of perjury. As per the Perjury (Northern Ireland) Order 1979 any person found guilty of perjury shall, on conviction on indictment, be liable to imprisonment for a term not exceeding seven years, or to a fine, or to both.
An affidavit is a written sworn statement of fact made voluntarily by the deponent under oath. The authenticity of the deponent’s signature is witnessed by a notary public or a commissioner of oaths such as a solicitor. The case of Santander v Carlin & Hughes  NICh 14 first came before the Chancery Court as the bank, as the owner of a legal charge over the property, made an application to enforce this charge by way of an Order for Possession. Affidavit evidence was lodged by the bank in a particular way, that is, through their solicitor. It was admitted that the affidavit evidence lodged was wrong although it was unclear whether it was intentionally untrue or whether it was a careless error and the Court made no finding in relation to this point. In any event, the Court determined that the Order for Possession was obtained improperly by a misrepresentation to the Court put in a sworn affidavit by the advocate for the lender to the Master. The judgment commends a course of action that the solicitor acting for the lender should follow when filing affidavit evidence.
Firstly, it is a necessity that the solicitor should expressly warn the lender of the serious consequences that are borne personally and by his or her employer if an affidavit is sworn that is false in any respect. Secondly, the solicitor must confirm to the Court that the financial institution has been so advised before the affidavit is sworn and then the affidavit may be sworn by the deponent. Deeny J indicated that it may be preferable for the financial institution to swear the affidavits themselves rather than require their advocate to do so. It is anticipated that there may be a further practice direction or indeed a ruling in relation to this matter whereby it will be a requirement for the lenders to swear affidavit evidence rather than delegate this responsibility to their legal advisors.
A copy of the decision can be found using this link
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