COVID-19: Is it possible to give a statutory declaration by remote video conferencing technology?

1st April 2020 Corporate Recovery and Insolvency

In an insolvency context, a statutory declaration is required for the following:-

  • To place a company into members’ voluntary liquidation pursuant to section 89 of the Insolvency Act 1986; and
  • To appoint an administrator over a company pursuant to rule 3.17(3) of the Insolvency (England and Wales) Rules 2016.

Section 20 of the Statutory Declarations Act 1835 prescribes the form of the statutory declaration to be given is as set out in the Schedule to the Act. Although this gives the precise words to be used, it makes no other instruction as to the formal requirements to be followed.

In an insolvency context these other instructions can be found at paragraph 5.2 of Practice Direction 32 of the Civil Procedure Rules 1998 [1] which outlines that the jurat must be signed by the person giving the statutory declaration and completed and signed by the solicitor taking the statutory declaration [2].

The position in practice is that a signature of the solicitor is required, and the use of counterparts seems to be ruled out because this signature must appear in the jurat where the person giving the statutory declaration signs.

In the fight against the coronavirus, the Government has introduced new measures requiring people to stay at home, except for very limited and essential purposes. Consequently this raises the question as to whether a solicitor is able to take a statutory declaration whilst abiding by the Government’s new social distancing measures or in circumstances where the person giving the statutory declaration is required to self-isolate?

The Coronavirus Act 2020 makes a range of modifications to courts and tribunal practice to permit and facilitate remote working in circumstances which would usually require physical attendance. No specific provision has however been made for the administration of statutory declarations.

It is presently understood that remote video conferencing technology such as Skype or Zoom could be used by a practising solicitor to administer a statutory declaration albeit the position remains unclear.

In our opinion the use of video conferencing software for this purpose would certainly look to fall within the spirit of the Coronavirus Act 2020. Furthermore, it is considered that reliance could be placed upon rule 12.64 of the Insolvency (England and Wales) Rules 2016 to retrospectively waive any defect arising from the use of Skype or other remote video conferencing software in the administration of a statutory declaration if required.

We are aware that some law firms are still prepared take statutory declarations in person and whilst that is to be commended, we do wonder if this presents an unnecessary risk as we all try to contain the spread of the deadly virus.

Matters are changing at a fast moving pace and lawyers are expecting imminent guidance to be given by the Law Society on this point. 

For our part until clarity is given we will assess each assignment on a case by case basis and continue to do our utmost to uphold the law and keep the wheels of the judicial system turning.

[1] Rule 12.1 of the Insolvency (England and Wales) Rules 2016 applies the Civil Procedure Rules (CPR) and Practice Directions (PD) to insolvency matters.

[2] Schedule 1 to the Interpretation Act 1978, “affidavit” includes a declaration

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Vanessa Stuart is a Senior Associate located in Manchesterin our Corp. Recovery and Insolvency department

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