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Creative solutions to swearing affidavits amid restrictions

06 Apr 2020 / Law Society Print

Finding creative solutions to swearing affidavits

Practical barriers to legal services can be overcome with the creativity, cooperation, and collegial problem-solving, Law Society President Michele O’Boyle has said.

However, Law Society lobbying of Government continues where clarity is needed on particular issues, particularly the swearing of affidavits, parental access and adjudication.

The President of the High Court Mr Justice Peter Kelly has also issued a direction on personal insolvency.

Concerned

Practitioners remain very concerned about the difficulty of complying with public health guidance while swearing affidavits and declarations.

The Law Society has looked at the relevant law and practice and researched innovative approaches in other common law jurisdictions, raising the matter with both the Courts Service and the Department of Justice & Equality.

The role of affidavits in litigation is an essential short-cut to avoid evidence being given viva voce on oath in court.

Without affidavits, the courts simply could not function.

It is extremely important, therefore, to find a way for affidavits or a new legal substitute to operate despite the public health emergency.

Regime based on statute

The regime for swearing of affidavits and declarations is based in statute. Accordingly, the only way of altering the underlying law is through legislation.

The Law Society has argued that the next piece of emergency legislation to be enacted by the Oireachtas should be a Civil Law (Miscellaneous Provisions) Bill that, in addition to resolving the current potential problems with the Statute of Limitations, should put in place a modern alternative to the statutory declaration, which could operate with ease in the current crisis.

What is currently viewed as the best legislative solution lies in the introduction of the ‘statement of truth’ concept contemplated in Head 12 of the Heads of a Civil Justice (Miscellaneous) Bill.

Interim solution

This also makes reference to Head 9 of the proposed Bill, which was approved by Government in 2019 but not published.

However, since it is unclear when draft legislation can again be placed before the Oireachtas, an interim solution must be found.

The Law Society has flagged to the Courts Service an innovative workaround for remote swearing using video-conferencing technology, introduced in British Columbia in Canada from 23 March.

The Law Society is exploring whether this system, or some variation of it, could be introduced without legislation, perhaps by Rules of Court. 

Confusion and ambiguity

The Family & Child Law Committee recently provided detailed guidance on  common family law issues.

The now-extended health restrictions have created confusion and ambiguity for practitioners and clients about parental access.

President Michele O’Boyle has written to both the Minister for Justice and Equality, Charlie Flanagan, and the Minister for Health, Simon Harris, seeking clarification.

Construction Contracts Adjudication Service

The Alternative Dispute Resolution (ADR) Committee has pointed to an announcement by the Construction Contracts Adjudication Service (CCAS) that it can no longer process applications for appointments of adjudicators in line with  its role under the Construction Contracts Act 2013.

The majority of adjudications proceed to a decision on documents only and the process is well-suited to the current restrictions.

Obstacles

The ADR Committee believes that any administrative obstacles that the CCAS may be experiencing should not deny parties the prompt access to justice that the 2013 Act is designed to provide.

Both business minister Heather Humphreys and Professor Nael G. Bunni of the CCAS were written to and urged to reconsider the position.

In response, CCAS will resume its service once essential changes to its  work processes are completed. 

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