COVID-19 - Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020Tuesday, 11 August 2020
Prompted by the challenges created by the COVID-19 pandemic to the Irish courts and legal system, the Irish government introduced the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (the "Act"). The Act is designed to meet immediate challenges caused by the pandemic and includes the authorisation of additional capacity in the coroner system to assist with reducing the backlog caused by COVID-19 related deaths; the use of electronic means for filing and issuing of court documents in civil proceedings by practitioners and the courts and court offices and the expansion of live video link and remote hearings in civil and criminal proceedings to address the requirements of social distancing. However, certain features of the Act will have a continuing impact beyond the current pandemic and we focus on two of these features below.
Statement of truth to replace traditional swearings
Under section 21 of the Act, so-called “statements of truth” can be used in civil proceedings, in accordance with the rules of court, in place of affidavits and statutory declarations. This replaces the traditional approach of swearing these documents on a religious oath and in the physical presence of a Commissioner for Oaths or a practicing solicitor. This change has been advocated by the Law Reform Commission for some time and already operates in England, though its implementation in Ireland has been accelerated by COVID-19 and the new social distancing norms.
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).
Admissibility of ‘business records’ in civil proceedings – amendment of the hearsay rule
Chapter 3 of the Act introduces a significant change to the law of evidence in civil proceedings and creates a statutory exception to the hearsay rule. 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.
A key principle of the law of evidence is that evidence should, in general, be capable of being tested in court, especially by cross-examination. Ordinarily, where a document is produced before a court, an individual is required to come before the court and give evidence as to the provenance and content of that document. Section 13 creates a presumption that the information contained in the “business records” is proof of the facts contained in those records without the relevant individual giving evidence or being cross-examined. The presumption may be challenged, but this shifts the onus to the other party to establish that the evidence contained in those records is untrue or incorrect.
Section 14 of the Act details the requirements for the admissibility of business records. Section 15 deals with how notice and delivery of the business record must be provided to the other parties. This section also sets out how an objection to such a business record may be raised. Section 16 provides safeguards on the operation of the procedure and provides that business records shall not be admitted into evidence where the Court is of the opinion that to do so would not be in the “interests of justice”. In making this assessment the Court must consider “all circumstances” and in particular, whether or not it is a reasonable inference that the information is reliable and the document authentic. The court must also consider whether there is any risk that the admission or exclusion will result in unfairness to any other party in the civil proceedings.
Section 17 of the Act deals with the admission of information where it goes to or questions the credibility of a witness. Section 18 allows for the admission of copies of business records subject to authentication as approved by the court and section 19 provides that evidence of resolutions passed by either House of the Oireachtas may be given by production of the official Journal of the proceedings.
The Act became law on 6 August, with the majority of sections (including all those referenced above) being commenced by Ministerial Order as of 21 August.
For more information or general advice on what the Act might mean for you or your business, please contact, John Fitzgerald, Head of Corporate Restructuring and Insolvency, Helen Gibbons, partner, Redmond Scanlon, solicitor, Richard Hourihan, solicitor from our Litigation and Dispute Resolution team, or your usual ByrneWallace contact.
Please note that the content of this summary does not amount to professional advice. Legal and tax advice should be sought in respect of specific queries. The COVID-19 situation is evolving rapidly and this update is provided on the basis of information available as at 18 August 2020.