What is an affidavit in reply?

An affidavit in reply (sometimes called a “reply affidavit”) is a technical term used by lawyers in the USA, English and Australian legal systems. An affidavit in reply can be defined as an affidavit served in court proceedings in which a deponent responds to another party’s evidence where that party’s evidence was itself in response to evidence served by the party serving the reply affidavit. In the same way, reply submissions or reply briefs allow the party who started a particular process (the “moving party” in the case of applications) to get the last word by replying to any response to their initial document.

This all sounds slightly complicated but can be explained by a couple of examples.

Examples

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Example 1: the plaintiff serves its affidavit evidence in the proceedings. The defendant serves its affidavit evidence. The plaintiff may then respond to the defendant’s evidence by serving affidavits in reply.

Example 2: the defendant brings an interlocutory application before the court such as a motion for summary dismissal. The defendant, as the moving party, will serve its affidavits in support of the motion. The plaintiff will then serve its affidavits. The defendant may then reply to the plaintiff’s affidavits by serving affidavits in reply.

As these examples demonstrate, the party with the opportunity to serve affidavits in reply is always the moving party (ie the party who serves their affidavits first in a particular instance), whatever their designation might be as plaintiff, defendant etc.

Content of an affidavit in reply

The purpose of an affidavit in reply is simply to rebut or answer matters raised for the first time in the affidavits to which the replies are made. Therefore a plaintiff cannot “save” matters from its initial affidavits (its “affidavits in chief”) and then put those matters in affidavits in reply. This is known as impermissibly “splitting the case.” Rather, the affidavits in reply should only rebut or answer new matters raised by the defendants which the plaintiffs have not already addressed. In this way each party gets a chance to raise new matters once, and to reply to the other party’s new matters once.

Who can make an affidavit in reply?

There is no restriction on who can make an affidavit in reply. In particular, there is no requirement that the deponent of an affidavit in reply must previously made an affidavit in the proceedings. Sometimes they will have and sometimes they will not have. Both lay and expert witnesses can give evidence in reply.

Does a party have to serve affidavits in reply?

There is no compulsion to serve affidavits in reply, and they should only be prepared if they are necessary to rebut a proposition. Sometimes there will be no entitlement to serve affidavits in reply if there is no rule, procedure, order or convention entitling a party to do so.