Urgent Change to Affidavits Required By Covid-19 Pandemic To Enable Access to Justice

We have all restricted our activities as directed by the Government to do what we can to slow the spread of the Covid-19 Corona Virus.

While legal services have been designated as essential services, legal practitioners have also restricted activities to those that are essential and that can be delivered safely. This involves most people working from home and remotely in other ways.

Our courts have effectively closed other than for urgent matters and the Courts Service is to be commended in that it is seeking to facilitate a move to remote hearings as swiftly as possible.

However, meanwhile, citizens awaiting remedies from the courts are entitled to access to justice in a timely fashion. Social distancing is likely to remain with us for some time and it is difficult to see the operation of our courts returning to normal while these requirements remain a necessity. Therefore, we need an alternative as a matter of urgency.

In the context of a move to the remote hearings of court proceedings, it is important to understand that almost all legal business required to be done to progress legal proceedings can be done remotely, with one very significant exception.

Affidavits cannot be completed remotely. They must be sworn in the physical presence of either a commissioner for oaths or a practising solicitor. These documents are an essential requirement for all court proceedings and for many non-contentious court-sanctioned processes such as the functions of the Probate Office and the Wards of Court Office.

A High Court ruling on affidavits has confirmed that, as the law currently stands, if a person has religious faith, they must swear an affidavit placing their hand on the sacred text of that faith. This places the commissioner for oaths (or practising solicitor) taking the oath in the entirely unsatisfactory position where he or she must enquire if the person making the affidavit is a person of religious faith and, if so, the commissioner must then produce the appropriate sacred text of that faith for the oath to be administered in accordance with the requirements of that faith.

This is a completely anachronistic practice that has no place in our modern society. The State, the courts, and the legal profession have no business enquiring as to the faith or otherwise of a person in the context of legal proceedings, unless for some reason the question of faith forms part of the subject matter of the proceedings. A person seeking to complete an affidavit should not be subject to the intrusion, indignity and potential embarrassment of having to explain their religious beliefs or otherwise to a stranger in the context of exercising their rights in a democratic republic.

The case for this change was made in a report of the Law Reform Commission from 1990 and the summary of recommendations from that report is here from which you will see offers a very simple and succinct change to the position. (The full report is here and the Law Reform Commission page on this is here.)

The legislation required to give effect to this change has been advanced to heads of bill stage since 2017 and can quickly and easily be brought forward for enactment.  A relevant extract from the heads of bill is here (the full heads of bill is here.).

It will be clear to anyone that this is a change that should have long since been made even in the absence of the current need for social distancing. But it must also be remembered that an affidavit can only be sworn in the physical presence of a person acting as commissioner for oaths who is independent of the solicitor acting on behalf of the person swearing the affidavit.

Therefore, affidavits cannot be sworn without a physical meeting of two or three people, and perhaps more depending on the circumstances. There are no circumstances in which an affidavit can be completed remotely and, therefore, a system of remote court hearings cannot presently proceed without the affidavits that the litigation process depends upon being sworn physically.

This need for otherwise unnecessary physical meetings is dangerous in the context of the current pandemic. Many litigants in court proceedings are vulnerable people who find themselves with no choice but to seek redress from the courts. Furthermore, the requirements for affidavits in probate matters and in the context of the creation and registration of enduring powers of attorney exposes many elderly people to the possibility of meetings with strangers that are entirely unnecessary and should be capable of being done remotely.

While many of the measures required to combat the current pandemic will involve significant cost, this is a change that will be almost completely cost-free to implement. Furthermore, it will result in significant cost saving for consumers who will no longer have to pay the additional third-party commissioner’s fees that are currently associated with almost all legal transactions.

Having regard to all of the foregoing, this long overdue and necessary change is now urgent.

Please go here now to sign the petition now to show your support for this change.

Please also spread the word with your friends, family, and colleagues and on social media to help make this important and urgently needed change happen.

*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.

Flor McCarthy is one of Ireland’s leading lawyers, certified by the Law Society of Ireland in Data Protection Practice. Flor has extensive expertise and hands-on practical experience in privacy, data protection and GDPR issues for marketers. He was chosen as Munster Solicitor of the Year at the Irish Law Awards in 2018.