Due to the Government’s necessary social distancing restrictions to control the COVID-19 pandemic in Ireland, the Courts Service has had to introduce various changes in court practices and procedures. We looked at some of the changes that were recently introduced, namely conducting trials via video-link here. However, one issue that the Courts Service will need to address is the swearing of affidavits remotely.
The Current Position in Ireland
The procedure for swearing affidavits is set out in Order 40 rule 5 of the Rules of the Superior Courts (the “Court Rules”) and is also governed by the Solicitors (Amendment) Act 1994. At present a deponent must sign their affidavit in the physical presence of a person empowered to administer oaths, which includes a practising solicitor. Currently, this is difficult and adversely affects business continuity of the courts.
The Position Elsewhere
As a result of COVID-19, the courts in Jersey, and the provinces of Ontario, Alberta and British Columbia, Canada, for example, have permitted affidavits to be sworn via video conference.
In British Columbia and Alberta detailed processes have been set out for commissioning affidavits where it is not possible, or is medically unsafe, for the deponent to physically attend before a commissioner. For example, deponents who are unable to leave their homes, are not permitted to receive visitors, or for those who are required to self-quarantine. Any affidavit to be sworn in these two Canadian provinces using video technology must contain a paragraph at the end of the body of the affidavit describing that the deponent was not physically present before the commissioner but was linked with the commissioner utilizing video technology and that the process for remote commissioning of affidavits was utilized.
In the UK, the Law Society’s position had been that in the absence of any prescribed requirements or case law, it remained the custom for the declarant to be physically present before the solicitor or commissioner of oaths at the time of taking the declaration. However, we understand that position may soon be updated, in light of the COVID-19 outbreak.
Pragmatic Solution in Ireland?
In order to comply with the social distancing guidelines, one possible solution in Ireland would be for parties to agree with the other side in litigation to defer the swearing of non-grounding affidavits until the COVID-19 restrictions are lifted, and it is safe to proceed as normal. A practitioner could send a signed but unsworn final version with each page initialled and containing a paragraph at the end of the body of the affidavit with an undertaking by the deponent to swear the affidavit in due course. Both sides will be faced with the same issue of having to get affidavits sworn and it is a reasonable solution for the time being.
However, this solution is not useful in the situation where a grounding affidavit needs to be sworn in order to issue proceedings/motions.
The Future of Remote Swearing in Ireland
As the issue of remote swearing is now an urgent issue that needs to be addressed, one way of introducing this during the COVID-19 pandemic could be by Practice Direction.
Practice Directions complement the Court Rules. It is usually a matter for the President in charge of each court to create a Practice Direction. Practice Directions cannot overturn the Court Rules as they are Statutory Instruments and as such the courts are bound by those.
If swearing remotely is to become a permanent procedure, then the Court Rules will need to be changed by way of Statutory Instrument.
The Courts Service, Law Society and Bar Council are working tirelessly to come up with solutions to the many practical issues we are facing as practitioners.
For the interim period, a Practice Direction could be the most practical and efficient solution. It would be a good opportunity to test swearing remotely during this period. If it does not work, the Practice Direction can be withdrawn quickly after the COVID-19 restrictions are lifted.
For more information on COVID-19 related queries/issues, William Fry has a COVID-19 hub (see here) which may be of assistance. Otherwise, please contact your regular William Fry contact.
Contributed by Joanne Ryan