Sarah Twohig and Rebecca MacCann of our Litigation and Dispute Resolution team, discuss some of the challenges faced when litigating in the COVID-19 era and how the legislature has responded to those challenges
The Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (Act), which became effective from 21 August 2020, has introduced some novel changes to be aware of when litigating in Ireland.
We focus on two specific aspects of the Act which seek to address not only the range of legal challenges and issues posed by the current health crisis, but which also seek to address long standing requests from practitioners and the public for progressive reform in the litigation space.
Changes made to the oaths and affirmations system in Ireland
Traditionally, if a person has to give evidence in proceedings by way of affidavit or statutory declaration, that person (deponent) is required to swear that the contents are true and accurate. This is done by swearing a religion-based oath in the physical presence of a Commissioner for Oaths or a practising solicitor. A non-religious deponent can choose to make an affirmation instead of an oath, but the deponent must specifically object to using an oath – thereby disclosing his or her lack of religious beliefs.
Under the Act, deponents can now make a “Statement of Truth” which is a simple non-religious statement where the deponent confirms that he or she “honestly believes” that the facts stated in the document are true. The Statement of Truth is signed without having to appear before a solicitor or Commissioner for Oaths, and it can be made in electronic form too.
It is a criminal offence to make a dishonest statement in a Statement of Truth. The possible penalties for committing this offence can be monetary, imprisonment, or both.
These changes do not apply to oral evidence given by Jurors and witnesses in court, who are still required to swear a religious oath or make an affirmation. It is hoped that the use of Statements of Truth will extend to oral evidence in the near future.
Introduction of remote Court hearings
Part 2 of the Act recognises the recent innovations made by the Irish Judiciary and the Courts Service regarding remote hearings in civil proceedings and, for the first time, places such hearings on the same statutory footing as proceedings held in a physical courtroom.
This is a significant development because the use of remote hearings is expected to support the courts’ efforts to deal with COVID-19 related backlogs in court lists and also in litigating cases in the future.
The Act also provides a statutory acknowledgment of the inherent jurisdiction of the Irish Superior Courts to hold remote hearings, while also recognising the jurisdiction of the District Court and Circuit Court to conduct remote hearings.
The key change to the oaths and affirmations system is that we are moving towards a more modern and efficient method for people to give written evidence. The full extent of the changes will be realised once the enabling Rules of Court are published.
Given the growing demand on High Court resources to progress hearings with oral testimony during the ongoing pandemic, the future of litigating cases with oral testimony in Ireland is likely involve a hybrid model of court hearing. This will likely encompass elements of physical hearings in the courtroom, where it is necessary for key witness to provide their evidence in person, and the use of virtual courtrooms, where other aspects of cases can be dealt with remotely.
As further pandemic disruptions are probable, the use of hybrid hearings in Irish litigation will allow the courts to comply with public health guidance while ensuring that cases progress.