knowledge 29 March 2021 |

COVID-19: Swearing of Affidavits Can Go Online

Evidence in a dispute may be provided orally or on affidavit.  Traditionally, an affidavit is sworn in the physical presence of an appropriate officer, such as a commissioner for oaths or a solicitor.  This reflects the gravity of the process, namely that evidence is being provided on oath on which a court will later rely.  However, the current pandemic and physical distancing requirements have thrown up significant challenges with this traditional process and there have been calls to allow it to move online.

To this end, the new court rules amend Order 40 of the Rules of the Superior Courts.  Order 40 rule 9 now provides that a person swearing an affidavit (the deponent) within Ireland may do so either:

• in the physical presence of the officer before whom it is to be sworn, or

• by videoconference between that officer and the deponent.

The latter option is available where, for particular reasons, it is not practicable for the deponent to meet physically with the officer.  Those reasons need to be briefly stated in the relevant affidavit.

In addition, where this videoconferencing option is chosen, certain additional conditions must be satisfied.  In summary:

• the officer must be provided in advance or at the videoconference with a copy of all necessary documents (which may be in electronic form);

• the officer must be satisfied that the deponent’s identity has been established in accordance with the relevant rules;

• the officer must be satisfied that the videoconference facility enables the deponent and the officer to see and hear each other;

• the officer must be satisfied that the deponent has the appropriate sacred text for taking the oath;

• during the videoconference and within sight and hearing of the officer, the deponent must produce the original of any relevant identity document; must identify each page of the affidavit and any exhibits; must complete any necessary signatures; and swear the affidavit;

• the sworn affidavit and all exhibits must be sent to the officer for attestation immediately after the videoconference;

• the officer must then complete the attestation and signing process once satisfied the documents correspond with those from the videoconference and must attach any relevant identity documents supplied by the deponent;

• the swearing clause on the affidavit must reflect the fact that the swearing was by videoconference.

Comment

Spurred on by the COVID-19 pandemic, the last year has seen a dramatic evolution in how litigation is conducted in Ireland.  This is the latest step in this process.  The practicalities of this new online model will be welcomed by many though care will be needed to ensure that deponents still appreciate the gravity of the process.