The ‘Best Evidence Rule’ – ‘ACC Bank Plc V Michael Byrne And Sean O'Toole’ [2014] IEHC 530 (Judgment Delivered 13 January 2015)

Author:Mr John O'Riordan
Profession:Dillon Eustace

This case related to a claim by ACC Bank plc (the "Bank") for a summary judgment against the first named Defendant on foot of a personal guarantee of €250,000 in respect of a loan facility to a company of €3.9m. One of the grounds of defence related to the Bankers' Book of Evidence Acts 1879-1989 (the "BBEAs"). The Defendant argued that the evidence produced by the Bank did not satisfy the provisions of the BBEAs and was therefore inadmissible.

Cregan J. held that the purpose of the BBEAs was to relax the "best evidence rule" (which requires original documents to be produced in court) and the rule against hearsay. However, he held that the BBEAs provided for certain safeguards to ensure the accuracy of the evidence adduced in reliance on the BBEAs.

On the facts, Cregan J. held that the Bank's evidence was deficient. This was because in referring to copies of a statement of account and a spreadsheet detailing the total amount due, the deponent did not say:

that at the time of "the making of the entry the banker's book was one of the ordinary books of the bank"; that the entry was made in the usual and ordinary course of business; and the banker's book was in the custody or control of the bank. He also held that the formal requirements of section 5 of the BBEAs had not been complied with. The case illustrates the difficulties inherent in relying on the BBEAs and the technicality of their provisions. It should be noted that the Defendant in this case did not seek to allege that the monies were not in fact advanced or that his guarantee was in some other way invalid.

Banks seeking to rely on the BBEAs must try to ensure that:

an employee or officer...

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