by Matthew Austin September-09-2020 in Litigation & Dispute Resolution, Regulatory & Administrative Law, COVID-19
The Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (the “Act”) was signed into law on 6 August 2020 to respond to the challenges that the Irish legal profession faces due to Covid-19. However, certain aspects of the Act will continue to impact both civil and criminal proceedings beyond Covid-19. The majority of the Act commenced in effect on 21st August 2020.
Remote hearing of civil proceedings
Under Section 11 of the Act, a court before which civil proceedings may be heard may direct that a case shall proceed by remote hearing. Any party to the proceedings can make an application to have the proceedings held remotely. If the court finds that the remote hearing is unfair to either party or contrary to the interests of justice, the court can refuse the application for hearing the proceedings remotely.
The court has the power to make further provisions for the conduct of proceedings by remote hearing including the means by which the remote hearing is to take place, the conduct of the remote hearing, the attendance of witnesses and the procedures which a party must follow if they are to object to remote hearing.
Importantly, the court retains the same powers when its proceedings are conducted remotely. A person who participates by remote hearing has the same immunities, privileges, obligations and liabilities as apply when proceedings are not held remotely.
It is a criminal offence if a person interferes with or obstructs a remote hearing. A person guilty of such an offence shall be liable to (i) on summary conviction, a class A fine or to imprisonment for a term not exceeding 12 months, or both, or (ii) on conviction on indictment, to a fine not exceeding €50,000 or to imprisonment for a term not exceeding 3 years, or both.
In response to this section of the Act, many courtrooms have now been adapted to allow for remote hearings and video link evidence of witnesses.
Business records and other documents in civil proceedings
Chapter 3 of the Act has created a statutory exception to the rule against hearsay evidence. This change will have an impact on civil proceedings beyond Covid-19. The rule against hearsay dictates that an out of court statement is generally inadmissible in evidence before the court for the purpose of proving the content of the statement.
Under section 13 of the Act, any record in document form compiled in the ordinary course of business shall be presumed to be admissible as evidence of the truth of the facts asserted in such a document. This is a rebuttable presumption.
Section 14 (1) states business records are admissible if the information was:
- compiled in the ordinary course of a business,
- supplied by a person (whether or not he or she so compiled it and is identifiable) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with, and
- in the case of information in non-legible form that has been reproduced in permanent legible form, was reproduced in the course of the normal operation of the reproduction system concerned.
Under section 16 of the Act, the court does have discretion to refuse the admissibility of business records if it is not in the interests of justice.
As a result of these new measures, documents which have been created during the ordinary course of business will generally be admissible in evidence before the court. A significant practical impact of this change is that the individual who created the document will not be required to attend court to give evidence in relation to the provenance and content of the document.
Use of electronic means in civil proceedings
Section 20 of the Act allows for the making of rules of court to enable the lodgement or filing of documents with the court by electronic means. This has the potential to significantly reform and modernise the manner in which legal proceedings are conducted but will require the making of new rules by the rules committees of the various courts to set out the required procedures.
Statement of Truth
Section 21 of the Act allows for Statements of Truth to be used in civil proceedings subject to the making of appropriate rules of court to facilitate it. A Statement of Truth is a document signed by either party which states that the party believes the facts to be true. This is designed to replace affidavits and statutory declarations in situations where the electronic means of lodgement or filing of documents with the Court provided for in Section 20 is utilised.
The person making a Statement of Truth must have an honest belief that the facts in the statement are correct. A Statement of Truth which is made without an honest belief is a criminal offence and a person shall be liable to: (i) on summary conviction, a class A fine or to imprisonment for a term not exceeding 12 months, or both, or (ii) on conviction on indictment, to a fine not exceeding €250,000 or imprisonment for a term not exceeding 5 years, or both.
Conclusion
The reforms, although a response to Covid-19, will hopefully result in modernisation of procedures in the conduct of litigation, particularly where lawyers are working from home or on the move.
For further information on any of the issues raised above, please contact Matthew Austin maustin@hayes-solicitors.ie.
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About the Author
Matthew Austin
Matthew is a partner in the Commercial & Business team and has considerable expertise in a range of practice areas, having acted for Irish and International clients in domestic and multi-jurisdictional issues. Matthew has advised in civil and administrative law disputes and in regulatory and advisory matters including insolvency/restructuring, IP, defamation and media law, competition and consumer protection and data protection.