Flor McCarthy

Back in May we started a campaign to replace affidavits sworn on oath with a more modern secular system of statements of truth.

You can see more detail on the background to this campaign here, but in essence, since as far back as 1990 it has been recommended that we should reform our legal system to allow people to complete affidavits without having to take religious oaths or to have to state whether they held religious beliefs and what those beliefs (or lack of them) were for the purposes of completing essential legal documentation. For instance, in personal injury and medical negligence claims litigation, affidavits are an essential component of each step in the litigation process and claims cannot be progressed without being able to file affidavits to verify pleadings etc.

This issue was rendered urgent by the COVID-19 crisis as affidavits sworn on oath cannot be completed remotely and this requires physical close meetings of multiple parties which involves unnecessary risk of infection in the context of a pandemic. As a matter of practical reality, such meetings were almost impossible to arrange during the lockdown period of COVID-19 restrictions and these restrictions may well return in the event of a second wave of the pandemic.

We started a petition which you can see here, which at the date of writing has received over 500 signatures, many of whom are practising lawyers very well familiar with the seriousness and practical consequences of this problem in terms of the ability to get ordinary and essential legal work done for citizens who are entitled to have their legal affairs taken care of without undue complication or delay.

We presented this petition to the new Minister for Justice in the week of her appointment and you can see our letter to the Minister presenting the petition here.

We were delighted to see that this issue does appear to have been given priority in the context of a COVID-19 response when it was announced that this would form part of emergency legislation, see coverage in The Irish Times on the issue here.

The legislation has since been published and you can see more detail on the bill itself here.  We were also delighted to see a comment by Minster as soon as the legislation was published to the effect that it was hoped to be enacted by the end of this week, see details on that here.

Statements of truth are dealt with in section 21 of the bill as initially drafted which provides that in any civil proceedings where evidence is to be given or information verified in documentary form by affidavit or statutory declaration a statement of truth may be used. A statement of truth may be in electronic form, must contain a statement that it is the honestly held belief of the person making it and it must be signed. A person who makes a statement of truth without an honest belief as to the truth of that statement shall be guilty of an offence liable to a fine of up to €250,000 or imprisonment for a term of up to 5 years on indictment.

However, as soon as the bill was published, it was clear that while statements of truth were indeed being introduced, they were also being limited in their use to documents capably of being filed electronically. (See section 21(1)(a) and (b))

It would be excellent if all documentation were capable of being filed electronically, and it is hoped that this will become widely available as soon as possible, however, at present, this is not the case and almost all documentation required in legal proceedings and legal transactions generally must be filed physically.

Therefore, at present, pending changes to the system of filing documentation in all personal injury and medical negligence claims litigation, probate and conveyancing matters, the statements of truth as envisaged by this legislation will not be available for use in the vast majority of cases.

As soon as we became aware of this on the publication of the legislation we wrote again to the Minister for Justice highlighting this issue and you can see a copy of our letter here.

At the time of writing it is understood that the bill will be enacted into law this week without further amendment before the Dáil rises for its summer recess.

It that is the case, it will be great that we have finally succeeded in getting statements of truth onto the statute books. However, it is disappointing and frustrating that it looks that, at present, pending further changes to our legal system, they will not be widely available for use immediately.

So, now we have statements of truth, the challenge now is to make them available for use by everyone in all forms of legal proceedings and transactions.

The campaign continues!

• Flor McCarthy is managing partner of McCarthy + Co Solicitors.