The provisions of the Circuit Court Rules dealing with affidavits have been amended. With effect from Friday, 3 November 2023, the Circuit Court Rules (Affidavits) 2023 (SI No. 526 of 2023) (the "SI No. 526") makes provision for the remote swearing of affidavits, as well as introducing new requirements that must be included in all affidavits. The changes bring those provisions of Order 25 of the Circuit Court Rules broadly in line with the commensurate provisions of Order 40 of the Rules of the Superior Courts, which was replaced in 2021 to allow, inter alia, for swearing of affidavits by videoconference.
Remote Swearing of Circuit Court Affidavits
The new rules allow for affidavits to be sworn either in the physical presence of the Country Registrar, a Commissioner to administer oaths for the High Court or a practising solicitor (the "Officer") or, where that is "not practicable", by videoconference.
When an affidavit is being sworn by videoconference the reasons why it is not practicable for the deponent to attend in person must be briefly outlined in the affidavit. A number of conditions must also be complied with, including:
- A copy of the affidavit (either in hard or soft copy), copies of any exhibits and, if required, a certified copy of the relevant document the deponent will use to verify their identity, must be provided to the Officer. This can be done in advance or at the videoconference;
- To allow the swearing to proceed, the Officer must be satisfied that:
- The deponent and the Officer can both be seen and heard by each other;
- Before the affidavit is sworn, the requirement in the jurat concerning the identification of the deponent to the Officer must be met;
- The deponent has access to the appropriate sacred text for taking the oath.
- The deponent must, within sight and hearing of the Officer:
- Produce the original of any document used to verify their identity;
- Identify each page of the affidavit and all exhibits referred to;
- Sign or mark all exhibits, and
- Sign and swear the affidavit.
- The sworn affidavit and any exhibits must then be sent to the Officer for attestation;
- Before attesting the affidavit and signing or marking any exhibits, the Officer must be satisfied the affidavit and any exhibit is the same as the document identified to them during the videoconference. If relevant, the Officer will also sign and append the certified copy of the relevant document used by the deponent to verify their identity; and
- The jurat must include the date on which the affidavit was signed by the deponent, where the Officer was when taking the affidavit and the fact the affidavit was sworn by way of videoconference.
SI No. 526 expands the requirements regarding information about a deponent that must now be included in an affidavit. All affidavits must state the deponent's description, trade, profession or employment, as well as their place of business, trade, profession or employment or their "true place of abode".
The rules relating to the requirements of jurats in Circuit Court affidavits have also been expanded. Under SI No. 526, where a document containing a photograph of the deponent is being used to establish their identity, this must now be specifically certified in the jurat and particulars of the document provided. This change brings the Circuit Court Rules in line with the Rules of the Superior Courts.
When affidavits are being sworn, all of the new requirements brought in under SI No. 526 must be complied with. Taking affidavits remotely may not expedite the process of swearing an affidavit and it does not appear to be the intention that it is to become the default position. The reason for taking the affidavit remotely must also be considered carefully given it is to be outlined. The updated rule will be of assistance in many situations, particularly with increased remote and hybrid working arrangements.