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Sowing wild oaths
There has been a change in the requirements for applications to be appointed a commissioner for oaths. Jonathan White explains
The power to appoint a commissioner for oaths is found in the Commissioners for Oaths (Ireland) Act 1872, which, at section 1, vested in the Courts of Queen’s Bench in Ireland the power to appoint “a fit or proper person” to take affidavits.
That power was transferred to the Lord Chancellor by section 73 of the Supreme Court of Judicature Act (Ireland) 1877, and thereafter was transferred to the Chief Justice by the Courts of Justice Act 1924.
Section 19(3) of the 1924 act expressly makes provision for the transfer of the power to appoint a commissioner for oaths: “There shall be transferred to the Chief Justice and vested in him the appointment of notaries public and of commissioners to administer oaths.”
That power of the Chief Justice was confirmed and transferred by the provisions of section 10(1)(b) of the Courts (Supplemental Provisions) Act 1961, which confirms that there shall be exercisable by the Chief Justice “the power of appointing notaries public and commissioners to administer oaths”.
On the role
Section 1(2) of the Commissioner for Oaths Act 1889 defines the role: “A commissioner for oaths may, by virtue of his commission, in England or elsewhere, administer any oath or take any affidavit for the purposes of any court or matter in England.”
Rules of court permit, or sometimes require, evidence by affidavit or statutory declaration instead of oral evidence. As such, without some means by which evidence can be taken in documentary form without requiring oral evidence, the day-to-day administration of justice would be hindered.
In administering the oath, the commissioner witnesses the swearing (or affirmation) by the deponent of the affidavit as that person’s means of authenticating and verifying the truth of its content.
The commissioner and the deponent then sign the relevant document to signify the making of that oath or affirmation, those signatures confirming the performance of the swearing of the oath or the making of the affirmation.
Procedure for appointment
Pursuant to the provisions of section 72 of the Solicitors (Amendment) Act 1994, practising solicitors are in a unique position insofar as they have, while holding a practising certificate, the powers conferred on a commissioner for oaths without holding the office of commissioner for oaths.
As such, practising solicitors in that category are no longer required to apply to be appointed commissioners for oaths.
Commissioners for oaths who are not in the above category are appointed by the Chief Justice sitting in open court.
Applications are made by petition showing the residence and occupation of the petitioner and his/her suitability to be appointed a commissioner for oaths. The petition must be verified by the affidavit of the petitioner.
A certificate or certificates of fitness, generally signed by six members of the legal profession and six leaders of the local business community, should be exhibited in the affidavit.
The petition is brought before the Chief Justice by notice of motion, which must be served through the Supreme Court Office on:
- The District Court clerk for the petitioner’s intended district,
- For appointments to Dublin only – the Law Society,
- For all areas outside Dublin – the local bar association.
In November 2020, a three-judge panel to the Chief Justice provided an opinion on the issue of the power to remove a commissioner for oaths. The Law Society was invited to, and did, provide written submissions on that issue for the purposes of that opinion.
The opinion set out, among other things, that “we are of the view that the Chief Justice does have a power to remove a commissioner for oaths, and that, there being no statutory source of that power, it exists as an inherent power in light of the fact that the Chief Justice is to appoint a commissioner to serve under his or her authority ‘at his pleasure’.”
On 22 January 2021, then Chief Justice Frank Clarke issued Supreme Court Practice Direction SC 22.
Noting from the above opinion that there appeared to be an inherent jurisdiction vested in the Chief Justice to consider issues concerning the suitability of persons who have been appointed as commissioners for oaths to continue as such, that practice direction goes on to set out the procedures, including the instigation of an inquiry, to enable the fair consideration of such issues.
The practice direction also provides that, in the event that the Chief Justice concludes that the commissioner concerned is not a fit person to remain acting as a commissioner, the Chief Justice will exercise the inherent power to remove the commissioner concerned from the list of such persons who are entitled to act as commissioner for oaths, and may give such further ancillary directions as may be appropriate in the circumstances.
Jordan judgment
A recent judgment changes the procedure for seeking appointment as a commissioner for oaths. On 7 May 2024, the Supreme Court delivered its ruling in Commissioner for Oaths – Declan Jordan.
As a result of that ruling, the certificate of fitness required from members of the legal profession in support of a person seeking to be appointed a commissioner for oaths has been amended.
The background to the Jordan case is as follows. In late 2023, the Supreme Court received a complaint concerning Mr Jordan, who was appointed as a commissioner for oaths in December 2020.
As a result, and as per the procedures set out in SC 22, the Chief Justice instigated an inquiry into the continuing suitability of Mr Jordan to be a commissioner. Having instigated that inquiry, the Chief Justice invited submissions from, among others, the Law Society.
The complaint received in relation to Mr Jordan was that he had, since his appointment as a commissioner, been convicted of offences in the District Court, including careless driving and failure to provide a blood or urine specimen.
Evidence of the convictions was attached to the complaint. However, it became apparent from the date of the complaint, the date of the District Court convictions, and the date of appointment, that the convictions predated the date of appointment as a commissioner and had not been brought to the attention of the Chief Justice at the time of the application for appointment.
As part of the inquiry process, the Chief Justice invited the Law Society to be represented at a for-mention listing before him on 18 January 2024, with a view to making any submissions it considered appropriate as to the principles to be applied in general and, if appropriate, in the individual circumstances of the case.
The Law Society was represented at that for-mention listing and, having confirmed to the Chief Justice that Mr Jordan was not, and never had been, admitted and enrolled on the Roll of Solicitors, made brief oral submissions on the more general issues in question.
Shortly in advance of the for-mention listing, Mr Jordan confirmed in writing to the registrar of the Supreme Court that he proposed to, and did, resign as a commissioner for oaths.
On that for-mention date, the solicitors who had acted for Mr Jordan at the time of his application for appointment as a commissioner were represented in court and indicated that they had no further instructions.
The Chief Justice noted Mr Jordan’s resignation as a commissioner and confirmed that, in light of the issues raised, he would issue a ruling at a later date.
In the Jordan ruling dated 7 May 2024, the Chief Justice, at paragraph 8, held that the complaint raised the more general issue of the failure to disclose a conviction of a criminal offence in an application for appointment as a commissioner for oaths, which the Chief Justice considered necessary to comment on to clarify future practice in that regard.
At paragraph 9, the Chief Justice noted that no reference had been made to the convictions in Mr Jordan’s application for appointment as a commissioner, and that they were not brought to the attention of the then Chief Justice.
On the contrary, certificates by six local residents and six members of the legal profession were submitted that the applicant was a suitable person to fill the office.
The Supreme Court Office had been informed during the inquiry process that the solicitors acting for Mr Jordan at the time of his application were themselves unaware of the fact of the convictions at the time the application was brought.
Going on to deal with changes in respect of future applications arising from the circumstances of the Jordan case, the Chief Justice, at paragraph 11 of his ruling, directed as follows: “All applications should include a statement by the applicant and any person supporting the application that the applicant (or the individual as the case may be) is not aware of any matter relating to his or her suitability to be appointed a commissioner for oaths, unless specified in the application.”
Arising from the Jordan ruling, the amended certificate required from members of the legal profession supporting a person seeking to be appointed a commissioner for oaths is available on the ‘Procedure in the Supreme Court’ section of the Courts Service website.
Solicitors who are considering providing such a certificate, or who are advising commissioner applicants, should therefore ensure that they have all relevant information before doing so. They should also read the Jordan ruling in full.
Jonathan White is a solicitor in the Law Society’s Regulation Department.
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