Major Changes to the Operation of the Courts
18 August 2020
The Covid-19 pandemic resulted in dramatic changes in the administration of justice in the Irish courts. Following the outbreak of the pandemic, court lists were suddenly cleared to ensure that the Court Services and users of the service were in compliance with the then public health advice. In an effort to find a facility to work around the public health restrictions, the Court Services piloted the remote hearing of certain court lists, which in the main worked successfully and ensured that certain matters did not sit in abeyance until the public health advice allowed for hearings in the more traditional sense.
The Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (the “Act”), now commenced by order by Minister Helen McEntee, Minister for Justice, places on a statutory basis some of the measures put in place to modernise the operation of both administrative and legal aspects of the Court Services.
There have been calls for a number of years to allow for a more liberal approach to both the filing of documents and in a secular State, there were calls to abolish the system of swearing oaths when a deponent is giving evidence on affidavit. If the provisions of the Act are operated in an efficient manner, it will give flexibility to the Court Services and its users to engage without necessarily the need for teams of lawyers to spend hours waiting in court houses for their cases to be called and may enable the administration of the courts in a more efficient manner.
The Minister has described the Act as “an important aspect of the courts’ dynamic response to the new challenges and many legal issues arising in the context of the current pandemic.” While the Act mainly addresses issues of a civil nature, there are also matters of criminal procedure addressed.
There are a number of provisions under the Act, the more substantial provisions of which are summarised below.
Remote Hearings in Civil Proceedings
Section 11 places the remote hearing of civil proceedings on a statutory basis. Upon the application of any party to the proceedings or the court on its own initiative, the court can direct that any category or type of proceedings can proceed remotely. When making this direction, the court will:
- specify the electronic communications technology by which the proceedings are to proceed; and
- include such ancillary or consequential directions as the court concerned considers appropriate.
The Act also makes provision for court rules to be amended to address issues such as the attendance of witnesses at remote hearings. Section 11 (7) makes it a criminal offence to either interfere with the electronic communication technology employed in the proceedings or without the permission of the court to make a recording of the proceedings. A person found to be in breach of these provisions on summary conviction could face a fine of up to €5,000 and/or 6 months imprisonment or on indictment, a prison term of up to 3 years and/or a fine of up to €50,000.
Lodging Documents with the Courts in Electronic Format
Until the commencement of the Act, the majority of documents filed with the courts were either delivered in person or by post to the relevant court office. Section 20 makes provision for the electronic filing of the following documents:
- a summons, civil bill, claim notice or other originating document;
- a judgment, decree or other order or determination of a court;
- any other document required under any enactment or rule of law to be issued by or on behalf of a court or court office; or
- the transmission by or on behalf of a court or court office by electronic means of any other document or information required under any enactment or rule of law to be transmitted by or on behalf of a court or court office.
The Admissibility of Business Records as Evidence in Civil Proceedings
Section 13 provides that any record in document form compiled in the ordinary course of business is presumed to be admissible as evidence of the truth of the facts asserted in such a document. The provisions on the admissibility of business records will simplify the process of satisfying the court as to the authenticity of records. Prior to the enactment of this provision, it was for the person relying upon documentary evidence to prove its veracity, usually by way of a witness at the hearing of the matter. The type of documents which enjoy this exception to the hearsay rule include, maps, plans, graphs, drawings, photographs, or a reproduction in permanent legible form, by a computer or other means (including enlarging), of information in non-legible form provided the document was compiled in the ordinary course of business.
Statements of Truth
Prior to the commencement of the Act, the rules of court required that any person proffering evidence to a court in written form (an affidavit or statutory declaration) must swear or affirm the evidence being put forward by the deponent. The oath is taken in the presence of a Commissioner for Oaths or a practising solicitor an in an effort to minimise the necessity for a witness to appear in person before a commissioner or a solicitor during the current pandemic, the statement of truth was introduced.
The Act provides that a Statement of Truth:
- may be in electronic form;
- must contain a statement that the person making the statement of truth has an honest belief the facts stated therein are true;
- may be signed by the person making it by that person entering his or her name in an electronic format or otherwise electronically as may be permitted by rules of court; and
- must comply with any other requirements as may be prescribed by rules of court.
The Act also makes provision for the following:
- the reform of the law concerning coroners in the context of the current pandemic;
- provision for the greater use of video links between persons in custody and the courts;
- extend the existing provisions on giving evidence through video link;
- provides for appeals (to the Court of Appeal and the Supreme Court) in criminal proceedings to take place via remote hearing;
- provides for the remote meetings of State bodies, unincorporated bodies and bodies designated by Ministers of Government; and
- makes provisions to alter the operating hours and sitting locations of the District Court.
The Act introduces some significant changes to the operation of the Irish Legal System. While several of these changes were overdue, the Covid-19 pandemic hastened the necessary amendments. These changes will allow a degree of flexibility in the manner in which the court services and its users interact with the administration of justice through the Irish courts. When the changes are fully operational, they should result in a more efficient use of the finite resources of the court services.