From today, 31 March 2021, updated Superior Court rules will be in place regulating the processes for swearing affidavits. The Rules of the Superior Courts (Affidavits) 2021 (“the Rules”) replace the existing Order 40 and will introduce a number of reforms to current procedures for swearing affidavits.
The most significant change introduced under the Rules is that it will now be possible in certain situations for a deponent to swear an affidavit remotely through video-conferencing. The facility to remotely swear an affidavit will arise where it is not practicable for a deponent to physically attend before the officer authorised to take the affidavit – i.e., an independent solicitor or commissioner for oaths. While the Rules do not set out the circumstances in which it will be permissible to swear an affidavit via video-conferencing, this will presumably apply in cases where either the health of the deponent or wider public health considerations mean that physical attendance is not possible. The default position is therefore likely to remain that affidavits should be sworn through physical attendance before the court officer who witnesses the swearing.
The Rules outline the processes which should be followed for remote swearings. Rule 9(3)(a) provides that the deponent must furnish the officer with a copy of the affidavit (together with any exhibits) either during or in advance of the video-conference taking place. During the video-conference, and within the sight and hearing of the officer taking the affidavit, the deponent must produce identification and then show each page of the affidavit and any exhibits before proceeding to swear and sign the affidavit.
Rule 9(3)(d) provides that prior to the swearing, the officer must satisfy themselves that the relevant sacred text is available to the deponent. Once the Affidavit is sworn by the deponent, it must then be immediately sent to the officer for attestation. Under Rule 9(3)(g), the onus is then on the officer to ensure that the affidavit and any exhibits are the same as those produced during the video-conference. Finally, Rule 9 stipulates that the jurat must state that the affidavit was sworn by video-conference, together with an account of the reason why a remote swearing was necessary.
Provision for swearing of affidavits by video-conference is a welcome innovation and a further sign of the willingness of the Irish legal system to embrace technology in the conducting of court business. It will be interesting to see how common place the remote swearing of affidavits does become – particularly in view of the continuing public health restrictions and advice against physical meetings. As with the statutory provision for remote court hearings introduced under the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020, facility for the remote swearing of affidavits is being introduced on a permanent basis and is therefore likely to feature increasingly in Irish civil procedure into the future.
The new rules may be reviewed here.
