Litigation reforms in response to COVID-19 pandemic

The Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 has been enacted after the commencement orders were signed by the Minister for Justice Helen McEntee, and the new Act introduces a number of welcome reforms, whilst predominantly brought about as a response to the COVID-19 pandemic, many of which are also a recognition of the recent innovations being adopted by the Courts Service and the judiciary.

From a civil litigation perspective, the principal reforms are in relation to the provisions for remote hearing, the e-filing or lodgement of documents with the courts by electronic means and the lodgement of “statements of truth” by electronic means as an alternative to the requirement to swear affidavits.

Statements of truth: An alternative to affidavits

Section 21 of the Act provides for the statements of truth to be used in civil proceedings and are seen as an alterative for the requirements for affidavits and statutory declarations. However, it should be noted that individuals may still opt to sign an affidavit or statutory declaration if they wish. This reform has been broadly welcomed as removing the traditional requirement for a deponent to attend before a Commissioner for Oaths of practising solicitor and to swear by indicating their religious faith. This physical attendance was not possible during COVID-19 and the removal of this requirement will certainly allow for the swifter and easier administration and progression of civil proceedings.

A statement of truth is a simple declaration that confirms the facts stated in the document are true. It can be in electronic form, it must state that the person making the statement has an honest belief that the facts as stated are true and it must be signed by the person making the statement electronically or otherwise as permitted by the rules of court. A failure to include a statement of truth could lead to the document and the evidence it contains being disregarded.

False statements of truth can lead to proceedings for contempt of court, and as set out specifically in Section 21 of the Act, it is also a criminal offence to make a statement of truth without an honest belief as to the truth of that statement. The possible penalties for committing this offence are a €5,000 fine and/or imprisonment up to 12 months (on summary conviction) or a fine up to €250,000 and/or imprisonment up to 5 years (on conviction on indictment).

As of the date of writing, the Law Society or the Courts Service have yet to release a precedent or template for the wording of the Statement of Truth, and as such for the time being, one should continue to complete affidavits and statutory declarations in the normal course.

Remote Hearings

The COVID-19 pandemic necessitated the Courts Service to expedite the remote conduct of judicial hearings in an effort to ensure that the administration of justice could continue during the lockdown. Indeed, it is estimated that almost 700 hearings have been remotely conducted over the last few months, and the Act will allow such remote hearings to continue as COVID-19 remains and after. This development will go a long way to enabling the Courts Service to clear the backlog, whilst restricting the risks of transmission. The Act allows for the procedures and processes to be determined to deal with any procedural issues, to include the attendance of witnesses.

The Act proposes that the Courts can direct certain categories of proceedings may be heard remotely, and it allows for parties to apply in any civil matter to have their proceedings heard remotely or for the Court to make such directions. Parties can object to such an application and the Court will decide whether a remote hearing would be fair to all parties.

It is important to note that the Act provides confirmation that remote hearings will have the same footing and binding as proceedings conducted in person, and all participants have the same obligations and rights.

From a practical sense, parties have already embraced new procedures, with many personal injury practitioners engaging in remote settlement discussions throughout COVID-19, and it is anticipated that the manner in which settlement meetings previously took place may now be a thing of the past.

Electronic filing

The Act also allows for electronic filing of certain proceedings and documents and the delivery of judgments. Where such documents are filed electronically, they shall be treated as the original. This new practice will undoubtedly allow many firms to move towards a paperless office system, or at the very least reduce the vast amount of paperwork which has been traditionally associated with litigation.

The rules will provide that the transmissions of such a document will require authentication of documents that are filed electronically, that the identity of the person transmitting the document be verified by providing the PPS number and may require confirmation whether the electronic transmission is in place of or as an alternative to any other method of filing the document in question.