Governor and Company of Bank of Ireland v Paul Keehan

JudgeMr Justice Ryan
Judgment Date16 September 2013
Neutral Citation[2013] IEHC 631
CourtHigh Court
Date16 September 2013
Bank of Ireland v Keehan
No Redaction Needed





[2013] IEHC 631

[No. 1950 S./2012]



Summary judgment

Motion to set aside refusal to enter final judgment - Evidence - Bank books - Applicable rules to prove books in court - Burden of proof - Whether prima facie case made out by plaintiff - Whether uncertainty regarding debt owed - Test to be applied - Moorview Developments Ltd v First Active Plc [2010] IEHC 275, (Unrep, Clarke J, 9/7/2010); Bank of Scotland Plc v Fergus [2012] IEHC 131, (Unrep, Finlay Geoghegan J, 30/3/2012) and Bank Of Scotland Plc v Stapleton [2012] IEHC 549, (Unrep, Peart J, 29/11/2012) approved - O'Gorman v Long (1959) 93 ILTR 3 distinguished - Rules of the Superior Courts 1986 (SI 15/1986), O 63, r 9 - Bankers Book Evidence Act 1879 (57 & 58 Vict c 56), ss 3, 4, 5 and 9 - Central Bank Act 1989 (No 16), s 131 - Order plaintiff entitled to judgment (2012/1950S - Ryan - High - 16/09/2013) [2013] IEHC 631

Bank of Ireland v Keehan

Facts: This was a motion seeking to set aside an order in which the Plaintiff”s (the Governor and Company of the Bank of Ireland) motion for liberty to enter final judgment against the Defendant (Paul Keehan) was both refused and dismissed and wherein costs were awarded to the Defendant. The Plaintiff sought liberty to enter final judgment in the sum of €317,043.38 and interest. Mr Murphy on behalf of Bank of Ireland advised there was monies and interest due under a Credit Agreement and an overdrawn Current Account. The Plaintiff previously demanded payment of monies due from the Plaintiff and thereafter the Plaintiff brought proceedings by way of summary summons, notifying its” intention to apply to the Master for judgment. The Defendant did not submit a replying affidavit and averred that the Plaintiff had not proved its” case, having failed to comply with the Bankers” Books Evidence Act 1879. Mr Justice Ryan cited various authorities and stated the purpose of the Bankers” Books Evidence Act 1879 was not to facilitate banks in making their claims on foot of unpaid accounts or loans but to provide a practical and efficient manner of gaining access to the information in bankers' books, especially when sought by third parties. Mr Justice Ryan held although the evidence of the contents of the bank's records did not conform to the formal specifications in the Bankers” Books Evidence Act 1879, it was apparent that the evidence of the Defendant's liability arose from the bank's books and records and that the statements were printed from its” computer records.

Mr Justice Ryan held the Plaintiff proved its” case that the Defendant defaulted on a loan and discharge of an overdrawn account and that the affidavits and exhibits constituted prima facie evidence of the Plaintiff”s claim. The Defendant criticised the contents of the grounding affidavit, however Mr Justice Ryan held it appeared to him that none of the Defendant”s criticisms amounted to a ground on which the proceedings could be dismissed.

Held: Plaintiff entitled to judgment

RSC O.63 r9








BANK OF SCOTLAND PLC v STAPLETON UNREP PEART 29.11.2012 2012/4/848 2012 IEHC 549

O'GORMAN v LONG 1959 93 ILTR 3


1. This is a motion pursuant to O. 63, r. 9 of the Rules of the Superior Courts seeking to set aside the order of the Master of the 26 th April, 2013, in which he refused the plaintiff's motion for liberty to enter final judgment against the defendant, dismissed the plaintiff's claim and awarded costs to the defendant. The plaintiff seeks liberty to enter final judgment in the sum of €317,043.38 and interest pursuant to contract or statute. The special endorsement of claim gives particulars of two accounts that it claims are due and owing and that amount to the sum claimed.


2. The claim is grounded in affidavits of Michael Murphy of Bank of Ireland Business Banking, O''Connell Street, Limerick, who avers that he is a business manger in the bank, is duly authorised to make the affidavit and that he does so "from facts within my own knowledge and from a perusal of the plaintiff's books and records, save as where otherwise appears and where so otherwise appearing I believe the same to be true and accurate".


3. Mr. Murphy sets out details of the accounts that give rise to the liability. First there was a credit agreement of the 5 th October, 2005, in the amount of €275,000 that the bank advanced to the defendant. He exhibits a copy of the credit agreement, a copy of the terms and conditions on which it was advanced and a copy of the acceptance of the facility and the terms and conditions by the defendant.


4. That original credit agreement was replaced by another agreement dated the 15 th February, 2011, which is the account in respect of which the great bulk of the liability arises. The credit agreement was for €299,724.32 (plus interest accrued) which was a continuation and replacement of the previous facility. The deponent exhibits a copy of the credit agreement, the loan terms and conditions and the acceptance by the defendant. This last document is signed by the defendant, dated the 1 st April, 2011, and is witnessed by David Ryan, solicitor, of Hartstonge Street, Limerick.


5. The deponent says that the defendant also has a current account which is overdrawn in the amount of €1,633.33, which account is payable on demand in accordance with the bank's terms and conditions.


6. On the 18 th May, 2010, the plaintiff wrote to the defendant citing events of default in that the loan facility was overdue and interest payments were not provided and the bank made a formal demand accordingly.


7. Mr. Murphy exhibits the loan account statement dated the 4 th September, 2012, showing the amount due and owing by Mr. Keehan and the transaction details in the account from the 16 th December, 2011, to the 20 th August, 2012. Similarly, with the current account statement of the same date, which records transactions from the 30 th December, 2011, to the 22 nd June, 2012.


8. The bank brought proceedings by way of summary summons setting out the details of the two accounts as then due and owing by the defendant. By notice of motion dated the 9 th October, 2012, it notified its intention to apply to the Master for judgment.


9. Following a hearing before the Master, the matter was adjourned and Mr. Murphy swore a supplemental affidavit on the 16 th April, 2013. In this he detailed a number of demand letters in addition to those that were exhibited in his original grounding affidavit. He exhibited those letters, one of which refers specifically to the overdraft facility that is the second account in respect of which the claim is made for a small sum in the summons.


10. The defendant has not filed a replying affidavit. The case made on his behalf is not of any substantive matter of defence in point of fact but rather that the bank has not proved its case. The argument is that the bank has not complied with the Bankers Books Evidence Act, 1879 as amended and that that the claim must therefore fail. The Master accepted that submission and ruled accordingly. In addition to this principal ground, the defendant also submits that there are some technical defects in the bank's proofs.


11. I have had the benefit of written submissions and oral argument of counsel for the bank and for the defendant. It is now apparent that at the hearing before the Master counsel were not aware of the amendments of the 1879 Act that were effected by section 131 of the Central Bank Act and did not draw his attention thereto. This was a significant omission because the legislation had not previously provided for records held electronically in non-legible form, i.e. computer records.


12. It is not in dispute that the plaintiff must establish a prima facie case. The plaintiff submits that it has done so and that the grounding affidavit does in fact comply with the Bankers' Books Evidence Act, 1879.


13. The function of the 1879 Act and its application to the question of how a bank may prove a debt owing from a customer have been considered in a number of recent cases in this court. Before referring to the cases, I will set out the relevant provisions of the Act. This is not a precis of the legislation but merely a summary of the parts as they may be applicable in this case.


14. Section 3 provides that subject to certain conditions a copy of any entry in a banker's book is receivable in all legal proceedings as prima facie evidence of its contents. In the first place, certain things must be proved by an officer of the bank. (Demonstrating its age, the Act provides that a partner of the bank may also provide the evidence.) The proofs are that the book was at the time of the...

To continue reading

Request your trial
20 cases
  • DPP v Wanden
    • Ireland
    • Court of Appeal (Ireland)
    • 30 July 2019
    ...that are not reasonably disputable, and they are a matter in respect of which judicial notice can be taken. In Bank of Ireland v. Keehan [2013] IEHC 631, Ryan J said [at para 24] that ‘courts have to take judicial notice of the obvious and commonplace facts and circumstances of ordinary lif......
  • Ulster Bank Ireland Ltd v O'Brien
    • Ireland
    • Supreme Court
    • 16 December 2015
    ...Developments Ltd v First Active Plc [2010] IEHC 35, [2011] 1 IR 117 and Bank of Scotland v Fergus [2012] IEHC 131 and Governor and Company of Bank of Ireland v Keehan [2013] IEHC 631, which are cases in favour of the admissibility of such records, whereas Bank of Scotland Plc v Stapleto......
  • Feniton Property Finance DAC v McCool
    • Ireland
    • Court of Appeal (Ireland)
    • 6 October 2022
    ...IEHC 549 (‘ Stapleton’); Bank of Scotland plc v Fergus [2012] IEHC 131 (‘ Fergus 1’); Governor and Company of Bank of Ireland v. Keehan [2013] IEHC 631 (‘ Keehan’); Permanent TSB v. Beades [2014] IEHC 81 (‘ Beades 1’); Ulster Bank Ireland Limited v Dermody [2014] IEHC 140 (‘ Dermody’); Ulst......
  • Promomtoria (Aran) Ltd v Burns
    • Ireland
    • High Court
    • 13 February 2019
    ...of the relevant bank official would depend upon his personal knowledge of the matter in dispute.’ 25 In Bank of Ireland v. Keehan [2013] IEHC 631, these authorities were discussed by Ryan J. (as he then was). As in the previous cases, the bank's deponent, Mr. Murphy, was an employee of the......
  • Request a trial to view additional results
1 firm's commentaries
  • A New Statutory Exception To The Rule Against Hearsay
    • Ireland
    • Mondaq Ireland
    • 21 August 2020 Moorview Developments v First Active plc [2010] IEHC 275, Bank of Scotland v Fergus [2012] IEHC 131, Bank of Ireland v. Keehan [2013] IEHC 631, and was developed in Ulster Bank v [2015] 2 IR 656 - see our previous client update here). The rule against hearsay has created some difficultie......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT