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Is it possible to take a statutory declaration by Skype video or similar technology?

26th March 2020

Is it possible to take a statutory declaration by Skype video or similar technology?

Although the position is fast-moving and guidance is expected to be given in due course by the Law Society, 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.

Section 20 of the Statutory Declarations Act 1835 (“SDA”) prescribes the form of the statutory declaration to be given is as set out in the Schedule to the Act. Although this gives the form of words to be used, it makes no other prescription as to the formal requirements to be followed. The practice in this area is, therefore, largely customary. Custom dictates that the person giving the statutory declaration and the solicitor administering in it are in the same place, typically the solicitor’s office.

Prior to 25 March 2020, the Law Society website displayed a guidance in response to a question asking, “Can a statutory declaration be taken by Skype?”. That guidance suggested that there was nothing in the case law or legislation which prevented the use of such technology but noted that customarily the declarant and the solicitor administering the statutory declaration would be physically proximate. This guidance was removed on 25 March 2020 from the Law Society website and it is anticipated that updated information, in light of the COVID-19 outbreak will be provided soon.

Two further points are relevant to note. The first is that the Coronavirus Act 2020 (“CA”) 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 is made for the administration of statutory declarations, however, the use of video conferencing software for such a purpose would plainly fall within the spirit of the CA.

Second, in an insolvency context, reliance could readily 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 analogous software in the administration of a statutory declaration.

Assumptions:

  • The question is asked in light of the ongoing COVID-19 crisis.
  • The statutory declaration is one which falls within the scope of the Statutory Declarations Act 1835.
  • The statutory declaration is being administered in one of the following contexts:
    1. A company entering MVL – section 89 of the Insolvency Act 1986;
    2. A company entering administration – rule 3.17 of the Insolvency (England and Wales) Rules 2016;
    3. To prove the due execution of a will or codicil.

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Sally Wollaston
Sally Wollaston
Business Development and Marketing Director
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