New rules on remote swearing of affidavits

The Rules of the Superior Courts (Affidavits) 2021 (S.I. No. 127/2021) came into effect on 31 March 2021 with the aim of providing greater flexibility to practitioners and clients alike as we continue to observe social distancing requirements and navigate our way through Covid-19.

This new statutory instrument introduces a number of new changes, perhaps most significantly it provides for the swearing of affidavits via video conference where it is now practicable for the deponent to attend in the physical presence of an appropriate officer.

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
• By video conference 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 video conferencing option is chosen, certain additional conditions must be satisfied:

• 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.

The past 12 months, with ongoing Covid-19 restrictions, have highlighted the difficulties associated with the swearing of an affidavit. The use of video conferencing to enable swearing remotely is consistent with recent legislative developments (the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020) permitting remote hearings in certain cases. This latest step in court processes, with the evolving use of technology, makes the amendment to the rule a welcome change.

You can find a link to the new rule here.

For further information on this topic, please contact Roisin Bennett at rbennett@reddycharlton.ie