by Kate Sherry January-31-2022 in Healthcare Law, Litigation & Dispute Resolution, COVID-19
Section 14 of the Civil Liability and Courts Act 2004 (2004 Act) obliges a plaintiff, defendant or third party in a personal injuries action, who is providing written evidence, to swear an affidavit of verification in relation to a pleading or further information. The Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (2020 Act) was introduced by the Irish Government in response to the challenges posed by the COVID-19 pandemic. Section 21 of the 2020 Act replaces the requirement for affidavits of verification in certain aspects of civil proceedings with what shall be known as a statement of truth.
So, what are affidavits of verification, affirmations, and statements of truth and in a rapidly evolving society, what is the future for such documents, if any?
Affidavits of verification
An affidavit of verification is a sworn written statement which verifies assertions, allegations, or further information. It must include a statement that the deponent has an honest belief that the information contained therein is true. The affidavit of verification must be sworn or verified on oath in the physical presence of a person empowered to administer oaths and affirmations, i.e., a Commissioner for Oaths or a practising solicitor. The purpose behind this document is to prevent fraudulent claims and section 14 (5) provides that any statement that is knowingly false or misleading in any respect is an offence.
Order 1A, Rule 10 of S.I. No. 248 of 2005, Rules of the Superior Courts (Personal Injuries) 2005 sets out a template affidavit of verification in Form No. 4, which commences with:
‘I, AB, …………. of …………., the (plaintiff, defendant or state other capacity or authority), in the above-entitled proceedings, aged eighteen years and upwards MAKE OATH and say as follows…’
The oath is sworn before a superior power or a god to confirm the truth of the document. Alternatively, if a person does not wish to swear an oath, they can make a solemn affirmation in the physical presence of a person empowered to administer the affirmation. However, the default position is an oath, and a person must explicitly decline to take a religious oath if they so wish.
Statements of truth
With the dawn of the COVID-19 pandemic and the operational challenges of the pre-existing legal system that followed, the 2020 Act was introduced. This Act facilitated a range of legal innovations such as remote hearings, the electronic issuing and filing of documents, and the statement of truth as an alternative to the swearing of affidavits of verification in civil proceedings.
Section 21 (1) of the 2020 Act provides that:
‘rules of court may, notwithstanding any other enactment or rule of law, make provision for a statement, which shall be known as a statement of truth, to be made and transmitted by electronic means in place of the affidavit or statutory declaration concerned and subject to such conditions and exceptions as may be specified by such rules.’
The statement of truth can be in electronic form, can be signed in electronic format and transmitted electronically. Similar to an affidavit of verification, the statement of truth must contain a declaration that the person making the statement of truth has an honest belief that the facts stated therein are true and it is an offence to make a statement of truth without this honest belief. A person found guilty of such an offence can be liable to fines or imprisonment, as provided for under section 21 (5). Unlike an affidavit of verification, the statement of truth does not require the physical presence of a third party or witness when signing, and therefore circumvents the COVID-19-related challenges in relation to social distancing and travel restrictions that the administration of an oath or affirmation would present.
An important distinction between a statement of truth and an affidavit of verification is that a person is no longer required to indicate their religious beliefs, or lack thereof, when executing a document. The statement of truth is a non-religious declaration. Under the General Data Protection Regulations (GDPR), a person’s religious beliefs are considered a special category of personal data that is deemed ‘sensitive’ and awarded specific protection. The replacement of religious oaths or affirmations with statements of truth would therefore appear to not only be necessary in the context of COVID-19, but also in the context of GDPR requirements.
Of significance, however, it would appear that section 21 of the 2020 Act requires amendments to the rules of court in order to give it effect. Although S.I. No. 306 of 2020, of the 2020 Act (Commencement) Order 2020, brings the above-mentioned section into operation, it would appear that the additional architecture to allow for implementation to practise is not yet in force and further legislation is anticipated. These rules may also prescribe the content, verification, authentication or form of the statement of truth. It is not yet clear when these rules will be brought forth.
The realities of a welcome development
The pandemic has hastened many legal developments, some of which were long overdue. One of these is the overhaul of the arguably archaic oath-based affidavit of verification. Indeed, the Law Reform Commission recommended the abolition of the oath-based system over thirty years ago. Section 21 of the 2020 Act is therefore a welcome legal advancement towards diversity and inclusivity.
There have been arguments, however, that the 2020 Act does not go far enough. As set out above, the statement of truth can only replace a sworn affidavit in certain civil proceedings. Religious oaths or affirmations will still be required when oral evidence is given in court, remotely or otherwise, and jurors will still have to take an oath or affirm. Affidavits will still be necessary in other areas of law such as probate and conveyancing. Newly appointed judges will also still have to swear before God, as the Constitution prescribes wording for the declaration they must make which contains religious references. Any amendment to these provisions would require a referendum.
A small but significant step
Although statements of truth do not yet apply to all areas of law, or even all areas of litigation, and although it would appear that the section 21-related rules of court have yet to be implemented, their introduction is a step in the right direction. The statement of truth is a legal advancement in procedure and a reflection of the state of flux of our society, culturally, economically and technologically. Given that section 21 of the 2020 Act does not provide for any limited time period, it would appear that this legislative reform is here to stay. However, it is yet to be seen whether the existing oath-based system will be replaced in its entirety.
For further information on the legislation or to discuss, please contact Kate Sherry ksherry@hayes-solicitors.ie or any member of our Healthcare Law team.
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About the Author
Kate Sherry
Kate Sherry is an associate solicitor with the Healthcare team and works in healthcare litigation, defending clinical negligence claims against public hospitals and private clinicians. Prior to joining Hayes, Kate worked for a number of leading law firms, gaining extensive experience acting on behalf of both Defendants and Plaintiffs.