Irish Court Of Appeal Rules On Manner By Which Bank Must Prove Its Claim

Author:Mr John Breslin and Nicholas Cole
Profession:Maples and Calder

The Irish High Court has decided a number of cases dealing with how a bank must prove its debt when suing for summary judgment to recover a defaulted loan. Not all of the decisions have been consistent in their approach. Some judges have held that the bank has to comply strictly with the requirements of the Bankers' Books Evidence Act 1879 (the "1879 Act"). In practical terms this requires a cumbersome chain of proofs where (as is invariably the case) proof of the debt is contained in computerised records.

Although the 1879 Act was amended on a number of occasions in recent decades, it is not in tune with modern technology. However other judges have held that a bank does not necessarily have to follow the 1879 Act procedures and so long as the individual giving evidence has personal knowledge of the borrower's account the evidence will not be hearsay.

Another recurrent issue has been whether an employee of a bank group member engaged in recoveries can give evidence of debt owed to the bank itself - the objection here being that the witness is not employed by the creditor and so the evidence is hearsay.

On 29 April 2015 in Ulster Bank Ireland Limited v Egan ([2015] IECA 85) the Court of Appeal handed down a judgment which signals a sensible and pragmatic approach to these issues.

The bank applied for summary judgment to recover sums due on foot of loan and guarantee agreements. Although there were minor inconsistencies in how the bank's witness described himself in different affidavits, the court found on the evidence that he was in fact an employee of the plaintiff bank (and not a separate legal entity in the banking group). The court's judgment was given by Mahon J. He found that the witness...

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