New Rules Allow for Remote Execution of Affidavits

The Rules of the Superior Courts (Affidavits) 2021 (S.I. No. 127/2021) came into effect on 31 March 2021 and will be welcomed by many practitioners and clients around the country. Covid-19 has caused disruptions in the legal sphere for several reasons and organising the swearing of affidavits has been no different, particularly for clients living outside of travel restriction limits and for elderly or vulnerable clients.

The new rules now accommodate the execution and witnessing of affidavit by a Solicitor by video conference where it is not practicable for the deponent to attend the Solicitor’s office. The new rules set out several conditions to be satisfied when an affidavit is being executed by video conference and they are as follows:

• In advance of the video conference, the Solicitor must have been provided with a copy of the affidavit and any exhibits;
• The deponent must be able to see and hear the Solicitor and to be seen and heard by the Solicitor;
• The identification of the deponent must be verified in accordance with the affidavit;
• The appropriate sacred text must be available to the deponent;
• The deponent must; produce the original of any document intended to be used to verify the deponent’s identity, identify each page of the affidavit and any exhibit referred to in it,  sign or mark every exhibit, and should then sign and swear the affidavit;
• The sworn affidavit and any exhibit referred to in it should be immediately sent to the Solicitor, for attestation by the Solicitor;
• The Solicitor must, before attesting the affidavit and signing or marking any exhibit referred to in it, satisfy himself/herself that the document (and any exhibit) is the same as that which had been identified to him/her during the videoconference and, where relevant, sign and append to the affidavit the certified copy of the relevant document used to verify the deponent’s identity, and;
• The jurat should indicate the date on which the affidavit was made by the deponent, the place at which the Solicitor was when taking the affidavit and the fact that the affidavit was sworn using a videoconference.

Currently the rules apply to the Superior Courts only, however, the Law Society are advocating for corresponding rules to be introduced in the District and Circuit Courts.

As deponents are required to give reasons in the affidavit as to why it is not practicable for them to be physically present, post-covid we may only see the use of videoconference swearing for clients living outside of the jurisdiction or otherwise unable to attend for good reason.

If you have any questions about Remote Execution of Affidavits, please get in touch with Colin Hayes, or any member of our Litigation team.