NEW RULES COMING INTO FORCE IN APRIL 2021 4: NON-DISCLOSURE OF AFFIDAVITS

A new rule coming into force on the 6th April 2021 expressly extends the prohibition on the use of witness statements in proceedings to affidavits.

THE ISSUE

There is currently a lacuna in the rules.  There is a prohibition on the use of witness statements in other proceedings. No such prohibition exists in relation to affidavits.

CPR 32.12 states :

“(1) Except as provided by this rule, a witness statement may be used only for the purpose of the proceedings of the proceedings in which it is served.

(2) Paragraph (1) does not apply if and to the extent that –

(a) the witness gives consent in writing to some other use of it;

(b) the court gives permission for some other use; or

(c) the witness statement has been put in evidence at a hearing held in public”.

That difference in the rules was considered in Official Receiver -v- Skeene & Bowers [2020] EWHC 1252, a case discussed here. 

THE NEW RULE: PLUGS THIS GAP

The new rule applies the same rule to affidavits as it does to witness statements.

8.—(1) In rule 32.12, after paragraph (2) insert—

“(3) This rule applies to affidavits in the same way as it applies to witness statements.”.

(2) At the end of rule 32.15 insert—

“(Rule 32.12 makes provision about the use of affidavits for purposes other than the proceedings in which they are served.)”.