New rules allowing for remote swearing of affidavits

On the 31st of March 2021, in response to the Covid-19 pandemic, the Rules of the Superior Courts (Affidavits) 2021 came into operation. This paves the way for the remote swearing of affidavits upon fulfilment of certain conditions, as outlined below.

The new court rules amend Order 40 of the Rules of the Superior Courts, which now provide that an affidavit may be sworn by the deponent in either of the following two ways:

(a) In the physical presence of the officer before whom it is to be sworn, or

(b) By video conference with the participation of the deponent and the officer.

‘Videoconference’ for these purposes includes any connection of two or more persons at different locations by means of information and communications technology.

Where the option of videoconference is chosen, the parties must comply with the following conditions;

• In advance or at the videoconference, the officer must be provided with a copy of the affidavit as well as copies of any exhibits referred to. These documents may be in electronic form.
• The officer must be satisfied that the videoconference facility enables the deponent to see and hear the officer and equally, for the deponent to be seen and heard by the officer.
• The officer must ensure that the requirements for identification of the deponent has been met before the affidavit is sworn.
• The officer must ensure that the appropriate sacred text (For example, a Bible or Koran) in order to take the oath, is available.
• During the videoconference and within sight and hearing of the officer, the deponent shall produce the original version of any relevant document in order to verify their identity and shall identify each page of the Affidavit and Exhibits.
• Following the videoconference, the sworn affidavit and any exhibit referred to in it shall immediately be sent to the officer, for attestation.
• Before attesting the affidavit, the officer must be satisfied that the document (and each exhibit) is the same as that which had been identified to him during the videoconference.
• The swearing clause on the affidavit must reflect the fact that the affidavit was sworn by videoconference.

The Covid-19 pandemic has been the catalyst for the Irish legal sector to adapt its operations in response to an ever-increasing requirement for remote and socially distanced litigation. While this new means of conducting proceedings appears here to stay, caution should be exercised to ensure that respective deponents continue to appreciate the complexities of this process.

The new rules can be viewed here.

This article was written by Patrice O’Keeffe, Partner, CKT, and Laura O’Sullivan, Intern, CKT.