(Rules of the Superior Court (Affidavits) 2021 (S.I. No. 127/2021))
Until recently Affidavits could only be witnessed in the physical presence of an appropriate officer, most commonly a solicitor or a Commissioner for Oaths (for the purposes of this update, we refer to the appropriate officer as a solicitor). The Rules of the Superior Court (Affidavits) 2021 (S.I. No. 127/2021) came into effect on 31 March 2021 and amends Order 40 Rule 9 of the RSC. Affidavits may now be sworn either in the physical presence of a solicitor or remotely by videoconference.
It is important to be aware that strict procedures apply before an affidavit can be sworn remotely (O.40 R.9(3)). In brief, they are as follows: –
It must not be practicable for the deponent to attend in the physical presence of a solicitor, and these reasons must be set out briefly in the affidavit,
The solicitor must be satisfied as to the identity of the deponent in advance of the videoconference where relevant,
The solicitor must be provided, in advance, with a copy of the affidavit, exhibits and where necessary a copy of the relevant documentation used to verify the deponent’s identity. These documents can be provided electronically or in hard copy,
The solicitor must be satisfied that the videoconferencing facility allows for both the solicitor and the deponent to see and hear each other,
The appropriate sacred text for taking the oath must be available to the deponent,
The deponent shall identify, during the videoconference, each page of the affidavit and each exhibit and shall sign and swear the affidavit and sign each exhibit,
Immediately after the videoconference, the signed and sworn affidavit and exhibits shall be sent to the solicitor for attestation. Before completing the jurat, the solicitor will be satisfied that the documents, including the document identifying the deponent, correspond with those identified during the videoconference. The jurat will note the fact that the affidavit was sworn by videoconference.
It is important that these rules are imposed and observed to ensure the integrity of the remote swearing of an affidavit.
Over the course of the pandemic, we have had to adapt to how we conduct our business from endless Zoom meetings, to remote Court hearings and electronic filing of Court documents. Many solicitors have faced difficulties over the past 18 months arranging for the swearing of affidavits due to public health advice, or if the deponent was vulnerable or unable to travel, causing inevitable delays. So, these changes are welcomed by the profession and the Law Society who had advocated for these changes making successful submissions to the High Court Rules Committee.
In circumstances where it is just not possible due to public health advice or simply if a deponent is unavailable due to illness or because they are overseas, these new rules provide an alternative to the traditional manner of swearing an affidavit and allow for business as normal.
These Rules apply only to affidavits, and not to statutory declarations which must be witnessed in the presence of the person witnessing them. At the time of writing, only the Rules of the Superior Courts have changed in respect of the remote witnessing of affidavits, and there are no corresponding rules in the Circuit or District Court Rules.