Affidavits must be sworn and witnessed before a solicitor or Commissioner for Oaths. This has been difficult during the pandemic, especially where deponents were vulnerable, elderly or unable to travel. Help is on its way. New High Court rules allow affidavits to be executed "remotely", over video conference platforms. These rules will help during COVID-19 but also when the deponent is overseas or otherwise unable to attend before a solicitor.

Background

A&L Goodbody has been advocating for greater use of technology in litigation, including remote execution of affidavits. Helpfully, the remote swearing of affidavits is now permitted under the Rules of the Superior Courts (Affidavits) 2021 which will come into operation on 31 March 2021. Until now, the person swearing the affidavit and the solicitor witnessing it needed to be in the same place when the affidavit was executed. Now affidavits can be witnessed remotely, via videoconferencing platform, e.g. Zoom, Teams etc. There are procedures to safeguard the process. While it may often be simpler to have affidavits executed in the traditional way in normal circumstances, this is a welcome alternative during COVID-19.

Requirements and Safeguards

The new rules permit remote swearing where, for reasons to be stated in the affidavit, it is not practicable for the deponent to attend in the presence of a solicitor or Commissioner for Oaths. Rule 9(3) outlines the new procedure –

  • Before, or at, the video conference, the solicitor must receive a copy of the affidavit and exhibits. An electronic copy will suffice.
  • The solicitor must satisfy themselves as to the deponent's identity and also that the latter can see and hear the solicitor.
  • The appropriate sacred text must be available to the deponent.
  • During the video conference, the deponent must produce the original of any verification documents and identify each page of the affidavit and exhibits which they are signing (ensuring that both parties are looking at the same documents).

After the videoconference, the signed affidavit and exhibits are sent to the solicitor, who, having confirmed that the documents are those identified during the videoconference, will complete the "jurat", certifying due execution.

What about Statutory Declarations?

Solicitors are often called upon to witness statutory declarations as well as affidavits (but without the sacred text). Unfortunately, statutory declarations cannot yet be solicitored remotely. This distinction was necessitated by the different language used in the legislation governing statutory declarations which meant that audio-visual swearing would be inconsistent with a statutory requirement for such statutory declarations to be made "in the presence" of a solicitor. Accordingly, the new rules only apply to affidavits.

Longer Term Solution – Statements of Truth

For some time the Law Society has been advocating the introduction of statements of truth in lieu of affidavits. Recent legislation allows the court to introduce rules which will allow civil proceedings to be conducted online. Section 21 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 allows the courts – in the context of online filing – to introduce rules permitting the use of statements of truth as an alternative to affidavits and statutory declarations. Statements of truth will not be witnessed in the same way as affidavits or statutory declarations. The introduction of statements of truth will be a welcome reform both for reasons of cost and convenience and to avoid taking affidavit evidence on the basis of a religious oath, an anachronistic requirement in a multi-cultural society.

However, statements of truth depend on the introduction of further Court rules and will only be permitted in civil proceedings once the electronic filing of evidence and pleadings is facilitated (another eagerly awaited development). Therefore, while statements of truth will ultimately be a welcome substitute, it will be some time before they come on stream.

Conclusion

We welcome these High Court reforms and look forward to corresponding changes in the District and Circuit Court as soon as possible, along with the introduction of statements of truth as a more appropriate means of introducing evidence in Court proceedings.