Evidence by affidavit in the Civil Court

Abstract

The introduction of the affidavit in Maltese civil procedure was very controversial. This was met with opposition by many lawyers and it is still perceived suspiciously. The thesis looks at the introduction of the affidavit and its effects. In Chapter 1 a brief overview of the law of evidence in Malta is given. Evidence is the perm of every court case and thus it plays a very important role in proceedings. This chapter seeks to distinguish between different types of evidence and the use thereof in a court of law. Chapter 2 focuses on the English law with regards to affidavits and written evidence. The affidavit is an Anglo-Saxon tool and thus a clear analyses of the manner in which the English use it and regulate it helps us understand the role and effect of an affidavit. The English have used the affidavit for a long time and it is not controversial, but its use is tied up with the pretrial system. A clear understanding of the English system is also important since it is our main source of law in this area. Chapter 3 gives a detailed analysis of the manner in which the affidavit was introduced into our law and the manner in which this has developed through the years since its use is always augmenting despite the resistance from certain legal practitioners. When it was officially introduce in 1984 its use was quite limited but with the 1995 amendments, despite the calls from the Chamber of Advocates for its removal, its scope was widened. Chapter 4 analyses the effects the affidavit had on our law. Does it really pose a threat to justice? In reality it does pose some dangers which are conceptually irresolvable but it is not as bad as many may lead us to believe. Certain dangers are present even with other forms of evidence and thus some problems are not intrinsic only to the affidavit. Chapter 5 is the concluding chapter and some suggestions for improvement are put forward. The affidavit is here to stay as it has been incorporated so much into our system. Moreover the courts still have an efficiency problem and thus removing the affidavit is out of the question. However certain measures can make the affidavit more just and acceptable. Improvements can be made in the manner an affidavit is drawn up and the manner in which it is sworn. The possibility of having a rule to the effect that an affidavit is drawn up before a notary is explored. The possibility of giving greater power to the court so as to rule upon the relevance of affidavits is also discussed and furthermore another possible improvement can be a more conscious effort to instruct upcoming law students in the ethics of the profession so as to avoid temptations lawyers may have to doctor affidavits. The right could also be given for any of the parties in a case to demand the court, upon a good cause being shown, that affidavits are not used in the particular case. The final recommendation is that the court is encouraged to utilise even more their right to call witnesses to give oral testimony ex officio so as to verify 'viva voce' the contents of an affidavit.