5.13: Obtaining records from others
13.13: Requirements for all filed documents
13.19: Requirements for affidavits

Case Summary

The Trial of the Action had been adjourned in order to provide the Plaintiff with an opportunity to obtain further evidence as to the Defendant’s possible interest in a business. Following the adjournment of the Trial, the Plaintiff filed an Application seeking, inter alia, an Order against a third-party individual, Dr. Elloumi, under Rule 5.13, which provides a procedure to obtain records from non-parties to litigation. Dr. Elloumi had previously signed an Affidavit purporting some knowledge of the Defendant’s business interest.

Service of Dr. Elloumi had been an issue: the Affidavit previously sworn by Dr. Elloumi included the Defendant’s counsel’s address for service as the party filing the document. Justice Lema noted that Rule 13.19(1) requires that Affidavits must include all enumerated aspects under Rule 13.13. Rule 13.13(2)(f) requires an address for service for the affiant, and Rule 13.19 requires that the Affidavit be in Form 49. His Lordship noted that the template of the form includes a section for the address and service of the party filing the document, which His Lordship found could be a different address than required in Rule 13.13(2)(f).

Justice Lema found that Dr. Elloumi could not be served through the Defendant’s counsel. As there was no address for service for the third-party affiant included in the Affidavit, His Lordship suggested that alternative attempts at service should be attempted before filing an Application to validate service.

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