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Remote swearing of affidavits

By: Priscilla McAlister

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Remote Swearing of AffadavitsAs a result of COVID-19 many industries and professions have had to rethink the manner in which they conduct their business; the legal profession are no different. Lawyers have had to adapt how they traditionally carry out their activities, including the use of IT platforms for remote Court hearings, and the introduction of electronic filing of Court documents.

A particular issue arose in relation to the swearing of affidavits. Traditionally affidavits are required to be sworn in the presence of a solicitor or commissioner for oaths. At the start of the pandemic, it became apparent that this procedure was no longer feasible on account of public health guidelines. In response to this, a new Statutory Instrument was enacted to allow for the remote swearing of affidavits.

S.I. No. 127/2021 came into effect on the 31st of March 2021. The Statutory Instrument amends Order 40, rule 9 of the Rules of the Superior Courts.  An affidavit may now be sworn in either of the following ways:

  1. In the physical presence of the officer before whom it is to be sworn; or
  2. By video conference with the participation of the deponent and the officer.

Procedure for swearing an affidavit online

The following procedure must be strictly adhered to, and certain criteria met, before an affidavit can be sworn remotely:

  1. The affidavit must briefly state why it is not practicable for the deponent to physically attend to swear the affidavit;
  2. The officer must be provided with a hard or soft copy of the affidavit and all exhibits referred to therein in advance of the video conference;
  3. The officer must be satisfied that the identity of the deponent has been established in advance of the video conference in circumstances where the identity of the deponent is unknown to the officer (Order 40, Rule 19(1)(c));
  4. The officer must be satisfied that the video conference facility enables the deponent to see and hear the officer and vice versa;
  5. The officer must be satisfied that the appropriate sacred text for taking the oath is available;
  6. During the video conference and within sight and hearing of the officer, the deponent must produce the original of any relevant document intended to be used to verify the deponent’s identity, must identify each page of the affidavit and all exhibits referred to therein, and must swear and sign those documents where appropriate;
  7. The sworn affidavit and any exhibits must be sent to the officer for attestation immediately after the video conference;
  8. The officer must be satisfied that the document(s) correspond with that which was (or were) produced during the video conference before attesting the affidavit and signing any exhibits.
  9. Where relevant, the officer must sign and append the certified copy of the document used to verify the deponent’s identity to the affidavit;
  10. The jurat or swearing block of the affidavit should indicate the date on which the affidavit was made by the deponent, the place at which the officer was when taking the affidavit and the fact that the affidavit was sworn using a video conference.

There are a number of pros and cons which arise from this new procedure.

Pros

  • The new process is more flexible and allows deponents to swear affidavits when they are out of the jurisdiction; self-isolating or unable to leave their home;
  • This process is also more convenient and allows busy working professionals or those with homecare duties to swear affidavits from a location which suits their needs;
  • The move is also a step towards a more modern and technology proficient legal system which will assist in attracting international entities to the Irish jurisdiction for dispute resolution;
  • The process is also more efficient and time-saving than traditional affidavit-swearing.

Cons

  • Deponents must justify their inability to swear the affidavit in person in the affidavit itself;
  • Both the officer and the deponent are reliant on technology;
  • A strict procedure must be followed where the swearing is to take place via video conferencing and this must be followed carefully;
  • Only the Rules of the Superior Courts have changed, equivalent rules are yet to appear in the Circuit and District Court rules;
  • There is a risk that the gravity of the provision of evidence on affidavit will be somewhat diluted by the online swearing as opposed to swearing an affidavit in person.

Weighing the pros and cons in the balance, it seems that this move is a positive one, and one which has, and should be, welcomed by practitioners.

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