No Restriction for Litigation! The Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 introduces significant litigation reforms

The Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (the "Act") was signed into law by the President on 6 August 2020 with the majority of the Act to commence by Ministerial Order on 21 August. The Act provides for a range of necessary reforms to respond to new challenges and legal issues arising from the COVID-19 pandemic.
 
In particular new measures in civil proceedings include:

Remote hearings
Section 11 of the Act places remote hearings on the same legal footing as proceedings held in a physical courtroom, recognising the court's recent move towards facilitating remote hearings. A party to any civil proceeding can apply for their case to be heard remotely or the court can direct such on its own initiative. Parties can also oppose a remote application, with the court deciding if it is fair to all parties or in the interests of justice to proceed with a remote hearing.  The Act makes it an offence for a person who interferes with or obstructs the remote hearing to be guilty of an offence and shall be liable on summary conviction to a class A fine or to imprisonment for a term not exceeding 2 months, or both, or on conviction on indictment, to a fine not exceeding €50,000, or to imprisonment for a term not exceeding 3 years, or both.

Section 11(5) provides that rules of court may make further provision for the conduct of relevant proceedings by remote hearing including the conduct of the hearing, the attendance of witnesses and the procedure a party must follow to object to a remote hearing.

Use of electronic means in civil proceedings
Section 20 of the Act allows courts to make provision for the electronic filing of proceedings and applications to court and the issuing of originating pleadings and judgments electronically.
Section 20(2) of the Act provides that court rules may require:

1. Authentication of documents which are filed, lodged or issued electronically;
2. Verification of the identity of a person transmitting a document, including by their personal public service number;
3. Specify that the electronic transmission is in place of, or is an alternative to, any other method by which a document could be filed, lodged or issued

Where a "document" is filed or lodged with a court by electronic means, an electronic copy in readable form or a printed version of it shall be treated as the original.
Although a welcome development, the Act is vague in a number of key areas. The term "document" is not defined, however, Section 20(1) of the Act indicates that this could be a decision for each court to make:
Notwithstanding any other enactment or rule of law, and without prejudice to any such provision in any enactment or rules of court, rules of court may, in relation to civil proceedings, make provision for—

1. the lodgement or filing of a document with, and the making of an application to, a court by transmitting the document or application by electronic means to the court office concerned,
2. the issue by or on behalf of a court or court office, by transmitting the document concerned by electronic means, of any of the following:

• a summons, civil bill, claim notice or other originating document;
• a judgment, decree or other order or determination of a court (including any  judgment, decree or other order or determination entered in or issuing from a court office);
• any other document required under any enactment or rule of law to be issued by or on behalf of a court or court office;or

3. the transmission by or on behalf of a court or court office by electronic means of any other document or information required under any enactment or rule of law to be transmitted by or on behalf of a court or court office.

The Act also states that the rules of courts may make provision for this measure, implying that the courts themselves must decide to incorporate it. This may create a system, for example, where electronic filing is permissible in the High Court but not in the District Court. The Act also gives no indication as to how stamp duty will be accounted for should the document be filed electronically.

The conditions for identification may also give rise to a GDPR issue for the courts. The collection of personal information such as PPS numbers would cause the courts to come within the definition of a data controller and make them subject to the responsibilities of same under the Data Protection Act 2018.

Statement of Truth
Section 21 of the Act provides that evidence can be given in a “statement of truth" in civil proceedings, in accordance with the rules of court, in place of affidavits and statutory declarations.  This will replace the traditional approach of swearing the documents on a religious oath and in the physical presence of a practising solicitor or commissioner for oaths.  A statement of truth is a simple document confirming that the facts stated in the document are true and it must state the person making the statement has an honest belief that the facts contained in the document are true.  The statement may be submitted electronically and the court rules may provide for it to be signed electronically by the maker of the statement and may prescribe the format for the e-signature. Furthermore, the court may prescribe what requirements the statement will also have to comply with in relation to the verification and authentication of the statement.

While seen as a progressive and overdue change, it appears that there could be a different system of use for the statement of truth in each jurisdiction, particularly with regard to the conditions for electronic submission of same.

The provision for the electronic signing of the statement of truth by the person making it also implies there is no longer a need for the swearing of evidence in front of a solicitor or commissioner for oaths. This raises questions over the veracity of these statements although provision has been made for criminal offences to apply to the making of a false statement of truth. The possible penalties for committing this offence are a €5,000 fine and/or imprisonment up to 12 months on summary conviction or a fine of up to €250,000 and/or imprisonment of up to 5 years on conviction on indictment.

It remains to be seen how the courts will adapt these new measures and if a unison approach will be taken by all jurisdictions.

Business records and other documents in civil proceedings
The most significant rule of evidence is that prohibiting hearsay.  Hearsay is a statement made otherwise than in court, which is offered as evidence of the truth of its contents. Generally, a witness, who is not an expert, can only give evidence of matters of which he or she has direct first-hand knowledge.  Hearsay evidence is generally excluded because it is assumed to be unreliable. An exception to this rule exists in Section 3 of the Bankers' Books Evidence Bill 1879 whereby a copy of any records used in the ordinary business of a bank is prima facie evidence of the matters, transactions and accounts therein recorded.

The issue of hearsay evidence in debt enforcement matters was recently examined in Promontoria (Aran) Limited v Burns [2019] IEHC 7. Mr Burns successfully challenged the evidence in support of the plaintiff’s application for summary judgment on the basis that Mr. Harris of Link ASI Limited was not directly employed by the plaintiff/appellant and that his evidence amounted to hearsay. Collins J. concurring with Baker J. noted the difficulties that plaintiffs such as Promontoria face in terms of the evidential burden in light of the applicability of the rule against hearsay, “clearly deserve the attention of the legislature”.
Sections 12 - 19 of the Act have now extended the exception to the rule of hearsay in relation to business records to civil proceedings.
This legislation has sought to clarify the exception with Section 14(1) of the Act stating:

Information contained in a document shall be admissible in any civil proceedings as evidence of any fact in the document of which direct oral evidence would be admissible if the information:

1. was compiled in the ordinary course of a business;
2. was supplied by a person (whether or not he or she so compiled it and is identifiable) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with; and
3. in the case of information in non-legible form that has been reproduced in permanent legible form, was reproduced in the course of the normal operation of the reproduction system concerned.

It does not apply to privileged information, information supplied by a person who is not compellable as a witness or information compiled for the purposes of a criminal investigation, inquiry, civil or criminal proceedings or disciplinary proceedings.

The legislation places a presumption that any record in document form compiled in the ordinary course of business is evidence of the truth of the facts asserted in the document. There are however some safeguards in place. Section16 provides that the court has the power to exclude any document if it is of the opinion that it is in the interests of justice to do so. In deciding this, the court must determine that it is reasonable to infer that the information is reliable, the document is authentic and that the inclusion will not result in unfairness to any other party.

Section 17 of the Act also allows evidence to be submitted which is relevant to the credibility of the person who originally supplied the information. Statements made by the person subsequent to supplying the information which may show that he or she has contradicted himself or herself are also permitted.

'Business' is defined broadly as "any trade, profession or other occupation carried on, whether for profit or otherwise, either within or outside the State". It also includes charities, local authorities and international organisations.

This new measure will lessen the burden in respect of funds proving their debts in the pursuit of summary judgment by widening the scope of the parties who can take advantage of this exception to the rule against hearsay.

Overall, this legislation has sought to clarify and streamline civil proceedings and bring Irish law in line with many other common law jurisdictions. While some aspects will require clarification, it is overall a timely and welcome reform.

The Act can be found in the link below:
http://www.irishstatutebook.ie/eli/2020/act/13/enacted/en/html 

Written by Noreen McGovern, Matthew Skelly and Rosie Callan

A phased return to work is taking place in different sectors.  Fieldfisher is committed to supporting you through the transition and beyond.  We continue to be available to our clients either remotely or in person, with your business as usual matters, as well as for C-19 support.    

Please review our Covid-19 hub for updates and get in touch if you require further information.