New rules which came into operation in March 2021 modify the requirements for Affidavits and allow for remote swearing. The rules are a welcome resolution to the unique problems posed by COVID-19 and a step forward in the digitalisation and transformation of the process.
The Rules of the Superior Courts (Affidavits) 2021 were signed by the Minister for Justice on March 10th and came into effect on March 31st. They have been welcomed by the Law Society, which has been advocating for reforms to allow the remote execution of Affidavits, arguing that this was both consistent with the relevant legislation and also with developments in other common-law jurisdictions.
In brief, the rules permit the remote swearing of Affidavits where, for reasons stated briefly in the Affidavit, it is not practicable for the deponent to attend in the physical presence of a solicitor. The rules impose safeguards to ensure the integrity of the remote swearing.
A video call option may be availed of in cases where, for reasons stated briefly in the Affidavit, it is not practical for the deponent and the solicitor to be together. There are additional conditions in this circumstance including;
- The solicitor must be provided with a copy of all relevant documentation (which may be in electronic form) in advance or while on the video call.
- The solicitor must be satisfied that the video call facility enables the deponent and the solicitor to see and hear each other.
- The solicitor must be satisfied that the deponent’s identity has been ascertained in accordance with the relevant rules.
- The solicitor must satisfy himself that the deponent has the appropriate sacred text (like a bible or Koran) for taking the oath.
Unfortunately, the rules only apply to Affidavits. Statutory Declarations cannot yet be witnessed remotely. This distinction is due to the legislation governing Statutory Declarations, which requires them to be signed in the presence of the person witnessing them.
The Law Society is also advocating for the introduction of corresponding rules in the District and Circuit Courts as soon as possible.
In practice, it may often be simplest for practitioners to have Affidavits executed in the traditional manner. However, this is a welcome alternative, both during the COVID-19 restrictions and in other circumstances where clients are unable to attend in person.
NB – This is a guide for information purposes only and does not constitute legal advice. If you have an issue requiring legal advice, please contact any of the team at Nolan Farrell & Goff LLP, whose numbers can be found on our website www.nfg.ie, or email info@nfg.ie.
