Margaret Cordial

The government has signed commencement orders for the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020, which introduces significant reforms to respond to the challenges and legal issues created by the COVID-19 pandemic.

A number of provisions will have continuing impact and will endure beyond the period of the pandemic and although necessitated by COVID-19, the reforms are a welcome step towards ensuring our legal system keeps apace with technological and economic developments.

From a civil law perspective, the Act introduces the following key reforms:

• Lodgement of statements of truth with the courts by electronic means as an alternative to the swearing of affidavits;
• Admissibility of business records as evidence in civil proceedings;
• The introduction of a statutory basis for the courts to conduct remote hearings of civil proceedings;
• Enhancing the existing provisions on giving evidence through video link to meet social distancing requirements;
• E-filing and issuing of court documents in civil proceedings;
• Provisions making it easier to alter the operating hours and sitting locations of the District Court;
• Reform of the law concerning coroners, including authorisation of additional capacity through appointment of temporary coroners to assist with COVID-19 related deaths;
• Providing for remote meetings and hearings of State bodies, unincorporated bodies (such as clubs) and bodies designated by government ministers, such as appeal boards.

The main reforms from a civil litigation perspective are contained in Part 3 of the Act and are considered in further detail below.

Statements of truth

Chapter 4 of the Act provides that written evidence can be given in a “statement of truth” in civil proceedings, in accordance with the applicable rules of court, in place of affidavits and statutory declarations. This new procedure reforms the current system of oaths and affirmations, which dates back to 1888, and required a witness providing evidence in civil proceedings to swear a religious oath in an affidavit and/or statutory declaration confirming the truth of their evidence and to do so in the physical presence of a commissioner for oaths or a practicing solicitor.

Section 21 of the Act provides that a statement of truth is a declaration that confirms that the facts stated in the document are true. It can be in electronic form and it must contain a statement that the person making the statement has an honest belief that the facts as stated therein are true and be signed by the person making the statement electronically or otherwise as permitted by rules of court. The statement must comply with any other requirements as to its content, verification, authentication or form as may be prescribed by the rules of court. A false statement of truth can lead to proceedings for contempt of court and additionally, section 21 makes it a criminal offence for a person to make a statement of truth without an honest belief as to the truth of the content of that statement.

It should be noted that religious oaths and affirmations are still be required when a witness is giving evidence viva voce in court.

Admissibility of ‘business records’ in civil proceedings

Chapter 3 of the Act introduces a significant reform of the law of evidence in relation to business records in civil proceedings and creates a statutory exception to the hearsay rule. Section 13 of the Act provides that 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 that document. “Document” includes a map, plan, graph, drawing or photograph or a reproduction in permanent legible form by computer or other means of information in non-legible form. “Business” includes any trade, profession or other occupation, whether for profit or otherwise, either within or outside the State.

A principle of the law of evidence is that evidence should, in general, be capable of being tested in court under cross-examination. Ordinarily, where a document is being relied on before a court, an individual is required to come before the court and prove that document by giving evidence as its provenance. Section 13 creates a presumption that information contained in business records is proof of the facts contained in those records without the necessity for the relevant individual having to come before a court and give evidence or be cross-examined. The presumption effectively shifts the onus to the other party to establish that the evidence contained in those records is untrue or incorrect. It should also be noted that section 15 prescribes that information in a business document shall not be admissible in evidence in civil proceedings without leave of the court, except where a copy of the document is provided to all parties.

Safeguards in relation to the procedure are provided for in section 16 of the Act which prescribes that business records sought to be admitted into evidence shall not be admitted where the court determines that to do so would not be in the ‘interests of justice’. In making such a determination, the court must consider a number of factors, to include, whether there is a reasonable inference that the information is reliable and the document authentic and if there is any risk that the admission or exclusion of the document would result in unfairness to any party to the civil proceedings.  

Remote hearings of civil oroceedings

Chapter 2 of the Act recognises recent innovations adopted by the judiciary and the Courts Service in facilitating remote judicial hearings of civil proceedings. Section 11 prescribes that a court may direct that any category or type of civil proceedings proceed by remote hearing, either on its own motion or on the application of any of the parties, specifying the electronic communications technology by which the proceedings are to proceed. The Act places remote hearings on the same legal footing as proceedings held in a physical courtroom.

The Act makes it an offence for a person to interfere with or obstruct electronic communications employed in the proceedings or to make any recordings thereof without the permission of the court.

Section 11(5) provides that rules of court make provision for the means by which remote hearings are to take place, including the conduct of hearings, the attendance of witnesses and the procedures by which a party may object to a remote hearing.

Electronic filings and documents

Chapter 4 of the Act in making provision for the electronic filing of documents in civil matters recognises the recent changes in court practice to allow for same. Section 20 of the Act envisages the making of court rules for the lodgement or e-filing of a court document, the making of an application to a court by electronic means, and for documents to be issued by or on behalf of a court or court office by electronic means. The documents concerned may include the issue of a summons, civil bill, claim notice or other originating document, as well as any judgment, decree or other order or determination of a court. The use of electronic means will be available as an alternative to, rather than replacement of, existing mechanisms. Where a document is filed or lodged with a court by electronic means an electronic copy or a printed version of it shall be treated as the original.

• Margaret Cordial is a litigation solicitor at Smithwick Solicitors.