New court rules that allow for the remote witnessing of affidavits in the superior courts came into effect on 31 March, write Liam Kennedy SC and Nadia Skelton.
The Rules of the Superior Courts (Affidavits) 2021 were signed by the Minister for Justice on 10 March and have been welcomed by the Law Society, which has been advocating for reforms to allow the remote execution of affidavits, arguing that this was both consistent with the relevant legislation and also with developments in other common-law jurisdictions.
In brief, the rules permit the remote swearing of affidavits where, for reasons stated briefly in the affidavit, it is not practicable for the deponent to attend in the physical presence of a solicitor. The rules impose safeguards to ensure the integrity of the remote swearing.
Rule 9(3) outlines how affidavits may be executed by videoconference:
- The solicitor must be provided in advance with a copy of the affidavit and exhibits,
- The solicitor must be satisfied of the deponent’s identity and also that the videoconferencing platform allows the deponent to see and hear the solicitor,
- The appropriate sacred text must be available to the deponent,
- During the videoconference, the deponent must identify each page of the affidavit and exhibits,
- After the videoconference, the signed affidavit and exhibits are sent to the solicitor, who, having confirmed that the documents are those identified during the videoconference, will complete the jurat. The jurat will indicate the date the affidavit was sworn by the deponent, where the solicitor was when witnessing the affidavit, and the fact that it was sworn by videoconference.
Unfortunately, the rules only apply to affidavits. Statutory declarations cannot yet be witnessed remotely. This distinction is due to the legislation governing statutory declarations, which requires statutory declarations to be signed in the presence of the person witnessing them.
Many solicitors will have found it difficult to arrange for affidavits to be executed during the pandemic, especially if the deponent was vulnerable, elderly, or unable to travel during lockdown
The Law Society successfully submitted to the High Court Rules Committee that statutory provisions requiring affidavits to be sworn before a solicitor would be satisfied by the new videoconferencing procedure.
However, audio-visual swearing would be inconsistent with the statutory requirement that statutory declarations be made in the presence of a solicitor. Accordingly, the rules only apply to the swearing of affidavits.
The Society is also advocating for the introduction of corresponding rules in the District and Circuit Courts as soon as possible.
In practice, it may often be simplest for practitioners to have affidavits executed in the traditional manner. However, this is a welcome alternative, both during the COVID-19 restrictions and in other circumstances, including where clients are overseas or otherwise unable to attend in person.
A fuller analysis of the rules will be published in a forthcoming Gazette.
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