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Remote controls

The new Rules of the Superior Courts allow affidavits to be executed remotely for the first time. Liam Kennedy SC and Nadia Skelton rewind.

Many solicitors will have been vexed by the difficulty of arranging for affidavits to be sworn during the pandemic, especially if the deponent was vulnerable, elderly or unable to travel.

The Law Society has been advocating reforms to allow remote execution of affidavits, arguing that this was consistent with the relevant legislation and with other developments in other common-law jurisdictions.

Our efforts have borne fruit. Helpfully, the High Court Rules Committee has recently approved rules to facilitate the remote swearing of affidavits.

We welcome the introduction of the Rules of the Superior Courts (Affidavits) 2021, which came into operation on 31 March 2021.

Until now, the person swearing the affidavit and the person witnessing it needed to be in the same place when the affidavit was executed.

The new procedure allows the deponent and the person witnessing it to be remote from each other, but simultaneously communicating via videoconferencing platform, for example, Zoom, MS Teams, etc. There are procedures to safeguard the integrity of the process.

While it may be simpler for practitioners to have affidavits executed in the traditional manner in normal circumstances, this is a welcome alternative during COVID-19. Furthermore, the rules may be helpful even after COVID-19, when dealing with overseas deponents or other deponents who are unable to travel.

Requirements and safeguards

The rules permit remote swearing of affidavits where, for reasons stated briefly in the affidavit, it is impracticable for the deponent to attend in the physical presence of a solicitor or commissioner for oaths.

They impose additional requirements when an affidavit is executed remotely. While they may appear complicated, the requirements ensure that the integrity of remote swearing matches a ‘physical’ execution.

Rule 9(3) outlines how affidavits may be executed by videoconference:

• Before, or at, the videoconference, the solicitor must be provided with a copy of the affidavit and exhibits. An electronic copy will suffice.
• The solicitor must satisfy themselves as to the deponent’s identity in the usual ways.
• The solicitor must be satisfied that the videoconferencing platform allows the deponent to see and hear the solicitor, and the appropriate sacred text must be available to the deponent.
• During the videoconference, the deponent must produce the original of any verification documents and identify each page of the affidavit and exhibits that 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. The jurat will indicate the date the affidavit was sworn by the deponent, where the solicitor was when witnessing the affidavit, and the fact that it was sworn by videoconference.

Statutory declarations?

Unfortunately, the rules only cover affidavits. Statutory declarations cannot yet be witnessed remotely. This is because of the wording of the legislation governing statutory declarations. Section 2 of the Statutory Declarations Act 1938 states “every statutory declaration shall be signed by the person making the same in the presence of” the witness.

The Law Society submitted, and the Rules Committee agreed, that statutory provisions requiring affidavits to be sworn ‘before’ a solicitor could be satisfied by videoconference.

However, audiovisual swearing would be inconsistent with the statutory requirement for a statutory declaration to be made ‘in the presence’ of a solicitor. Primary legislation would be required to allow for remote execution of statutory declarations. Accordingly, these rules only cover affidavits.

Longer-term solution

The Law Society has been advocating the introduction of statements of truth in lieu of affidavits in civil proceedings. Such reform could ultimately reduce the importance of both affidavits and statutory declarations in litigation.

Section 20 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 allows the court to introduce rules that permit parties to initiate and conduct civil proceedings online. Section 21 allows the courts – in the context of online filing of pleadings and evidence – to introduce rules permitting the use of statements of truth as an alternative to affidavits and statutory declarations.

Statements of truth will essentially confirm the deponent’s belief that the facts contained therein are true, and they will not be witnessed in the same way as affidavits or statutory declarations.

The Law Society advocates for the introduction of statements of truth, not only for reasons of cost and convenience, but so as to avoid taking affidavit evidence on the basis of a religious oath, a requirement that appears increasingly anachronistic in modern Ireland.

However, statements of truth depend on the introduction of further court rules, and will only be permitted in civil proceedings where the electronic filing of evidence and pleadings is facilitated (another development advocated by the Society).

While statements of truth will ultimately be a welcome alternative for affidavits, it will be some time before they come on stream, since court rules are required and these are likely to be rolled out as part of future e-filing arrangements. 

These reforms are welcome. In practice, it may often be simpler for practitioners to have affidavits executed in the traditional manner. However, this offers a welcome alternative, both during the COVID-19 restrictions and in other circumstances, including where clients are overseas or otherwise unable to attend in person.

The Society is also advocating for the introduction of corresponding rules in the District and Circuit Courts as soon as possible.

Longer term, the Law Society will continue to advocate for the introduction of statements of truth as a more appropriate means of introducing evidence in court proceedings.  

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