One of the purposes of the changes to the insolvency rules that were introduced in England and Wales in 2016 and subsequently the Scottish Rules in 2018* was to modernise the language used. The term ‘affidavit’ was replaced with ‘statutory declaration.’
A statutory declaration is a written statement of fact where a declarant affirms that the facts stated are true to the best of their knowledge and is governed by the Statutory Declarations Act 1835 (‘Act’). A statutory declaration must be witnessed in front of a prescribed person.
England and Wales
In England and Wales, the following persons are prescribed persons:
1. A Commissioner for Oaths:
a person commissioned by the Lord Chancellor to administer oaths or affidavits for the purposes of any court matter in England or Wales.
2. A Solicitor:
all solicitors that hold a valid practising certificate are entitled to act as a Commissioner for Oaths. Solicitors are not authorised to carry out “notarial acts” unless they are also notaries.
3. A Notary Public:
a lawyer and public official specialising in the authentication and certification of signatures, authority and capacity relating to documents. By virtue of their role, notaries can act in effect as a Commissioner for Oaths.
4. A Justice of the Peace:
is an ordinary citizen empowered to hear minor civil and criminal cases in their local community.
5. Any other qualified person:
Includes members of the armed forces ranked Major, Lieutenant-Commander or Squadron Leader and above, as well as British Consular and Diplomatic officers posted abroad.
Scotland
In Scotland, a statutory declaration needs to be signed in front of a notary public or Justice of the Peace.
A solicitor is not automatically authorised to administer oaths unless they are also in possession of a practising certificate to act as a notary public as per the Legal Profession and Legal Aid (Scotland) Act 2007 Section 62. If a solicitor is a notary public, in those circumstances, and for the avoidance of doubt, it is suggested that they state their capacity as Notary Public rather than as a solicitor.
The Law Society of Scotland is responsible for the admission and registration of notaries
You can find out if your chosen Scottish solicitor is also a notary public here.
- The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) Rules 2018 and the Insolvency (Scotland) (Receivership and Winding Up) Rules 2018, taken together, the Scottish Rules 2018.