18 December 2018

What the Dickens?!!!

By Fiona Hewitt, Director, Hayes + Storr

At this time of year, attention often turns to Charles Dickens, and anyone who has read a Dickens’ novel will be aware of how much he loved to poke fun at lawyers and legal proceedings. Many aspects of modern legal practice would be completely alien to Dickens – employment law, intellectual property law, health and safety legislation to name a few, but there are some areas of the law where procedures have, in some respects at least, changed much less over the last 180 years …..

Swear Words
In The Pickwick Papers, a misunderstanding leads to the amiable but bumbling Mr Pickwick being sued. Dickens describes a scene at court, where a clerk is administering oaths:

‘…the oath being invariably administered, without any effort at punctuation, and usually in the following terms:
“Take the book in your right hand this is your name and hand-writing you swear that the contents of this your affidavit are true so help you God a shilling you must get change I haven’t got it.”’

Although we now try to be a little more client-friendly in our approach, the wording described above will be familiar to anyone who has had to swear an oath for legal purposes. Clients often comment to us that the procedure seems rather archaic and strange. Certainly, it raises a few questions:

What is the purpose of an oath?
An oath or affidavit is a document which needs to be sworn before a solicitor or legal executive (Commissioner of Oaths). The document has to be sworn whilst holding a bible or other holy book. It is usually for documents used in Court, including probate oaths – the process of applying for a Grant of Probate, a legal document issued by the Court that proves an executor’s right to administer the estate of a deceased person.

The idea behind confirming a document by means of an oath is that the person who swears to it is making a solemn promise that the contents are true, to the best of their knowledge and belief. It is the equivalent on paper of a witness in Court swearing to tell ‘the truth, the whole truth and nothing but the truth’. Lying on oath is taken more seriously by a court than an untrue statement made in other circumstances.

What happens if you don’t want to swear on the Bible?
Many people, whether or not they have any religious belief are prepared to swear on the Bible, accepting it as part of the procedure. However, some people object to the practice on religious grounds or for other reasons. In these circumstances, an ‘affirmation’ is perfectly acceptable, and the lawyer who is administering the oath will provide some slightly amended wording.

What is the swearing procedure?
An oath must be sworn in front of an independent lawyer/solicitor – not someone from the firm who has prepared the relevant document. It is also possible to swear an oath before an appointed court official. You will need to repeat or read out the wording given to you by the lawyer which is not dissimilar to the wording described above by Dickens. The fee is currently £5, with an extra £2 for each ‘exhibit’ (document attached) to the statement. It’s a little more than a shilling, but still a token fee for this old-fashioned procedure and perhaps not too much for a chance to swear at a lawyer!

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.

If you would like further advice on this matter please contact Fiona on 01328 863231. If you require advice on any other legal matter call 01263 825959 or email law@hayes-storr.com.