New rules for swearing affidavits
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New rules which came into operation in March 2021, modify the requirements for affidavits and allow for remote swearing. The rules are a welcome solution to the unique problems posed by COVID-19 and a step forward in the digitalisation and modernisation of the courts process.
An affidavit is a written sworn testimony, which allows factual evidence to be presented to court. Previously, for an affidavit to be acceptable evidence, it had to be sworn by the witness (known as a deponent) in the physical presence of a solicitor. In more recent times, due to COVID-19 and the requirement for social distancing, the need for the physical presence of a solicitor has posed significant difficulties. Helpfully, the revised rules now facilitate the swearing and witnessing of an affidavit via a videoconference.
Order 40, Rule 9 of the Rules of the Superior Courts now provides that a deponent swearing an affidavit within the State can do so either:
Order 40, Rule 9 of the Rules of the Superior Courts now provides that a deponent swearing an affidavit within the State can do so either:
- in the physical presence of a solicitor before whom it is to be sworn, or
- by video call between that solicitor and the deponent.
In practice
The 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. A number of additional conditions are required to be satisfied in this respect:
The 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. A number of additional conditions are required to be satisfied in this respect:
- 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;
- during the video call and within sight and hearing of the solicitor, the deponent shall produce the original of any relevant identity document; shall identify each page of the affidavit and any and any exhibits referred to in it, must sign or mark every exhibit, and sign and swear the affidavit;
- the deponent's sworn affidavit and the exhibits must be sent to the solicitor, for attestation immediately after the video call (the new rule does not specify whether originals must be sent to the solicitor, but we should presume it);
- the solicitor must then complete the attestation and signing procedure once satisfied that the documents are the same as those identified to him during the video call and must sign and attach any relevant identity documents provided by the deponent,
- the affidavit must indicate the date on which the affidavit was made, the place at which the solicitor was when taking the affidavit and confirmation that the affidavit was sworn by video call.
The changes to the RSC are a welcome development where in the past year there has been a dramatic increase in the number of court hearings and other legal processes being conducted remotely. The revised rules will certainly increase efficiency and most importantly create a safer environment for deponents and solicitors.
Written by Mark Woodcock and Ciara Gilroy