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Civil litigation reforms

10 Nov 2020 / courts Print

A change is gonna come

Many legal reforms that would have taken years to implement in normal circumstances have been introduced in a matter of months as a result of COVID-19.

The sudden and dramatic pressures created by COVID-19 have led to legislative reforms that the Law Society has long been seeking.

The Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 provides statutory recognition for innovations adopted by the Irish judiciary and the Courts Service over recent months.

Those changes (such as allowing for electronic trial bundles and remote court hearings) helped to reduce the impact of COVID on the administration of justice.

The act also introduces other changes that not only respond to the crisis, but also help our justice system evolve to reflect societal and technological developments and requirements.

At a glance, the main reforms are:

  • Statutory provision for remote judicial hearings, and the electronic issuing and filing of court documents,
  • ‘Statements of truth’ to be available in many circumstances as an alternative to antiquated processes for swearing affidavits and statutory declarations,
  • New rules to make it easier to introduce business records as evidence in civil proceedings.

Remote hearings

Approximately 1,000 judicial hearings have been conducted remotely, mainly by video-conferencing, since the introduction of COVID restrictions.

In normal circumstances, such a development would have taken years to implement.

However, rapid testing of readily available technology was undertaken by the Courts Service and representatives of the Law Society and the Bar, with the active leadership and encouragement of the judiciary, to develop and implement models to allow court hearings to proceed remotely.

The successful pilots led to a rapid roll-out of remote hearings where possible (subject to the availability of the necessary technology and facilities in particular courts).

The experience has demonstrated that remote hearings can be an adequate replacement for physical hearings in many circumstances, with the potential to reduce delays in litigation.

The experience has also required the Courts Service, the judiciary, and lawyers for all parties involved in remote hearings to familiarise themselves with the technology, which may lead to improvements and efficiencies in the way litigation is dealt with, even when we have at last moved beyond the restrictions.

The act formally acknowledges these innovations by providing jurisdiction to hold remote hearings, and for court rules and practice directions to be introduced to deal with the related processes and procedures.

How remote hearings work

The act effectively codifies many practices adopted over recent months. It envisages that the Chief Justice and the presidents of the various courts may direct that certain categories or types of proceedings may be heard remotely in their respective courts.

Parties can also apply for a remote hearing, and individual courts have the discretion to make such directions. If such an application is not agreed by all parties, the court will decide whether it would be fair to all parties or in the interest of justice to conduct the hearing remotely.

The act confirms that remote hearings will have the same status as proceedings in a physical courtroom: the court’s powers will be the same (including as to the compulsion of testimony or document production), and parties and witnesses will have the same rights and obligations.

Even without the act, remote hearings in the higher courts would have been difficult to challenge because of those courts’ inherent jurisdiction to regulate cases before them. However, there may have been more scope for such a challenge in the District and Circuit Courts, being established by statute.

The act addresses any such concern by providing that remote hearings in the District and Circuit Courts are deemed to take place in the court where they would otherwise have occurred, and judges may exercise their normal powers accordingly.

Long-term potential

Remote hearings were introduced extremely quickly in response to COVID, but such innovations have enormous long-term potential to improve the efficiency and cost-effectiveness of the administration of justice and to offer a better service to the public.

For example, the success of remote hearings in dealing with call-overs could be invaluable in towns and cities that High Court and Circuit Court judges only visit periodically.

In practice, when the judge is in town, there is a huge volume of work, and there can be significant delays until the next time the court is on circuit, with cases proceeding on a stop-start basis as a result.

However, a great deal of court work, such as procedural applications, could be dealt with by remote hearings, keeping cases moving around the country and saving the courts even more valuable time on circuit for matters that need to be dealt with in person.

The ability to conduct remote hearings throughout the country would enable cases brought outside Dublin to be progressed to trial or settlement far more quickly than has traditionally been the case, and it would also make it easier for all parties, including clients and their lawyers, to participate in such hearings as appropriate.

Electronic filings

The act also formally recognises the innovations initiated by the judiciary and the Courts Service (with the active support of the Law Society) for the use of electronic trial bundles, electronic filing of court documents, and the delivery of judgments electronically.

Notwithstanding that some of these processes have already been implemented in response to COVID, this digital modernisation of the Irish judicial system is to be welcomed in general. It is particularly welcome that the legislation now provides for proceedings to be filed electronically, another reform long advocated by the Law Society.

Court rules are now awaited to implement the key provisions.

The act envisages that court rules may require the following processes to safeguard the integrity of court filings:

  • Authentication of documents that are filed, lodged or issued electronically,
  • Verification of the identity of a person transmitting a document (including by their personal public service number), and
  • Confirmation as to whether 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.

Statements of truth

The provision for written evidence to be given in a ‘statement of truth’ as an alternative to affidavits is another welcome reform. It reflects many other common law jurisdictions where religious oaths are not required.

The old rule required a witness providing written evidence in civil proceedings to swear an oath before God to confirm the truth of their evidence, and to do so in the physical presence of a person empowered to administer oaths.

If a witness objected to swearing in this way, they were required to make a solemn affirmation in the physical presence of the person empowered to administer the affirmation.

The Law Society has long sought reform, arguing that requiring a witness to declare their religious belief is not appropriate in a 21st century society – and that it raises privacy concerns.

Practical issues also arise with respect to COVID when a witness must be in the physical presence of the person administering the oath or affirmation.

It is anticipated that new court rules will allow a non-religious statement of truth that may:

  • Contain a statement that the person making the statement has an honest belief that the facts are true,
  • Allow it to be signed in an electronic format prescribed by those rules, and
  • Outline other requirements relating to the content, verification, authentication or form with which such statements must comply.

As religious oaths or affirmations will still be required when oral evidence is given in court, the Law Society continues to advocate replacing the oath-based system in its entirety.

Records presumed admissible

Often, the obvious way to prove a point would be by reference to routine business records, such as delivery dockets, purchase orders, or invoices.

However, technically, such documents would need to be proven by a witness at trial, failing which they would normally be inadmissible as evidence in civil proceedings.

In practice, litigants often agreed to admit such records. However, the rule could lead to difficulties, delay, and increased costs if parties insisted on formal proof of documents, particularly if they were created years ago.

The act introduces a new statutory presumption that business records will be admissible in civil proceedings.

This brings Irish civil procedures more in line with Irish criminal law practice, the approach taken to banking records, and the approach to evidence in civil proceedings in other common law jurisdictions.

Evidence of the truth

Business records will now be admissible as evidence of the truth of the facts asserted in such records, including records originating outside Ireland, where:

  • Direct oral evidence would be admissible regarding the fact in the record,
  • The information was com-piled in the ordinary course of a business,
  • The information was supplied by a person who had, or may reasonably be supposed to have had, personal knowledge of the matter (irrespective of whether the person who compiled the information is identifiable), and
  • The information is a reproduction of non-legible information in a legible form, and that reproduction occurred in the course of the normal operation of the reproduction system concerned.

Parties will still need to prove records in the usual manner if they do not meet these criteria.

The criteria suggest that business records may be admissible even if the person providing them as evidence (for example, a company secretary) was not the original author, provided they were compiled in the ordinary course of business.

Further, the act permits, if necessary, the admission of oral or documentary evidence from a person who can explain the information in the documents.

Where the original business records no longer exist, a party can produce copies if they are duly authenticated (including as to reliability) in a manner approved by the court.

Notice of a party’s intention to seek to introduce business records as evidence must be provided to the other party. A notice of objection can be delivered if a party wishes to object to the admissibility of all or part of the documents.

Records

A court can still refuse to admit business records if it has concerns regarding the reliability and authenticity of the records. The court can also decide the weight and reliance that should be placed on the records.

The credibility of the source of a business record can also be challenged, including by evidence of contradictory statements.

Business records will not be admissible in certain situations, such as where they are privileged or compiled in contemplation of criminal, civil or disciplinary investigations or proceedings (subject to exceptions in the act).

Positive impact

Notwithstanding that these reforms were enacted quickly and in response to urgent needs, the modernisations introduced will have a lasting and significant practical and positive impact on the conduct of civil litigation in Ireland during, but also after, the pandemic crisis.

Liam Kennedy, Stephen King and Eimear Digney
Liam Kennedy SC is a partner and commercial litigator, Dr Stephen King is a senior associate in litigation and dispute resolution, and Eimear Digney is a commercial litigation solicitor at A&L Goodbody