Supreme Court dismisses appeal on bank debt recovery where affidavit evidence complied with Bankers' Books Evidence Act.

THE SUPREME COURT

[Appeal No. 114/2014]

MacMenamin J.

Laffoy J.

Charleton J.

BETWEEN

ULSTER BANK IRELAND LIMITED

PLAINTIFF/RESPONDENT

AND

RORY O’BRIEN, DANNY O’BRIEN AND MICHAEL McDERMOTT

DEFENDANTS/APPELLANTS

Judgment of Ms. Justice Laffoy delivered on the 16th day of December, 2015

Scope of the judgment

1. The gravamen of the appeal by the first and second named defendants (the O’Briens) against the order of the High Court (Hedigan

J.) made on 3rd March, 2014 giving judgment to the plaintiff (the Bank) for the sum of €888,920.89 and costs is that the affidavit

evidence adduced on behalf of the Bank amounted to inadmissible hearsay evidence and, in particular, that. by reason of its failure to

comply with the requirements of ss. 4 and 5 of the Bankers’ Books Evidence Act 1879 (the Act of 1879) as amended, the affidavit

evidence adduced could not be received as prima facie evidence of the O’Briens’ indebtedness to the Bank in accordance with s. 3 of

the Act of 1879. The history of the proceedings in the High Court and the affidavit evidence adduced and relied on by the Bank are

particularised in the judgment about to be delivered by Charleton J. In that judgment, Charleton J. comprehensively addresses the law

applicable to the admissibility of hearsay evidence in this jurisdiction, including the provisions of the Act of 1879 as amended, in the

context of the factual matrix and concludes that the High Court judge did not err in giving the Bank judgment against the O’Briens. I

agree with the conclusions reached in that judgment and with the analysis of the law and its application to the facts outlined and I

have nothing to add to it.

2. However, given that the submissions made on behalf of the O’Briens and the Bank disclose some differences in the jurisprudence of

the High Court in the recent past as to the evidence which may be sufficient to discharge the obligation on a financial institution to

establish its debt on an application for summary judgment in summary proceedings to recover that debt, I consider that it would be

useful to consider the issue raised on the appeal in the narrow context of the procedural approach adopted by the Bank in this case

to recover its debt and the extent to which the factual circumstances here are analogous to or differ from the factual circumstances

considered in the authorities cited by the parties.

Procedure adopted by the Bank

3. The Bank adopted the procedure by summary summons provided for in Order 2, rule 1 of the Rules of the Superior Courts 1986 as

amended (the Rules). That procedure is available to a plaintiff who seeks to recover a debt or liquidated demand in money payable by

the defendant arising, inter alia, upon a contract. No issue has been raised on behalf of the O’Briens as to the entitlement of the Bank

to avail of the procedure. In any event, it is quite clear from the indorsemnt of claim on the summary summons that the Bank did have

such an entitlement.

4. The indorsement of claim on the summary summons which issued in this case on 26th August, 2013 naming as defendants the

O’Briens and Michael McDermott (collectively referred to as “the defendants”) complied with the requirements of Order 4, rule 4 of the

Rules. The special indorsement of claim on that summons outlined –

(a) the relevant terms of the Facility Letters dated 22nd July, 2004 and 8th December, 2005 whereby the Bank advanced

loan facilities of €329,000 and €471,000 respectively to the defendants on the basis of joint and several liability and the

draw down of each of the loan facilities;

(b) the demand by the Bank for repayment of the sums then due and owing by the three defendants and each of them on

a joint and several basis pursuant to the said loan facilities by letter dated 1st February, 2013;

(c) that, despite the demand made, the defendants and each of them had failed, neglected and refused to pay to the

Bank the amount demanded; and

(d) that, at the time of the issue of the summary summons, the defendants were jointly and severally liable to the Bank in

the sum of €888,920.89 together with interest.

The relief claimed was judgment in the said sum of €888,920.89 together with further interest accruing and costs. In the outline legal

submissions filed on behalf of the O’Briens it is suggested that the sum of €888,920.89 was claimed on foot of guarantees executed

by the defendants. That is not the case. It is quite clear from the special indorsement of claim that the Bank was claiming on the

basis that the defendants were primarily liable to the Bank for monies advanced by the Bank to them. I have considered it appropriate

to clarify that point, notwithstanding that, in all probability, the reference to guarantees was a slip.

5. Although an appearance was entered to the proceedings by the solicitors on record for the O’Briens on 19th September, 2013, an

appearance was not entered on behalf of the third defendant. Therefore, the procedural steps subsequently adopted by the Bank,

which are the subject of this appeal, related only to the O’Briens. As is outlined in the judgment of Charleton J., on 16th October,

2013, the Bank filed a notice of motion for liberty to enter final judgment against the O’Briens and each of them in the sum of

€888,920.89 together with further interest accruing thereon and costs. That motion came before the Master on 14th November,

2013, who ordered that it be dismissed with costs to the O’Briens against the Bank. That order was appealed to the High Court and it

was on foot of that appeal that the High Court, by the order dated 3rd March, 2014, gave the Bank judgment in the sum of

€888,920.89 and costs.

6. The jurisdiction invoked by the Bank in filing the notice of motion on 16th October, 2013 was the jurisdiction conferred by Order 37

of the Rules. Order 37, rule 1, insofar as is relevant for present purposes, provides as follows:

“Every summary summons indorsed with a claim (other than for an account) under Order 2 to which an appearance has

been entered shall be set down before the Master by the plaintiff, on motion for liberty to enter final judgement for the

amount claimed, together with interest (if any), . . . Such motion shall be . . . supported by an affidavit sworn by the

plaintiff or by any other person who can swear positively to the facts showing that the plaintiff is entitled to the relief

claimed and stating that in the belief of the deponent there is no defence to the action. . . .”

It is clear on the wording of that rule that, as regards proof of the claim, an affidavit sworn by a person other than the plaintiff who

can swear positively to the relevant facts is sufficient. However, the later provisions of Order 37 are protective of the defendant. For

instance, under rule 2, although it is stipulated that the motion for liberty to enter judgment under that order shall be heard on

affidavit, there is a proviso that any party desiring to cross-examine a deponent who has made an affidavit filed on behalf of the

opposite party may serve upon the party by whom such affidavit has been filed a notice in writing requiring the production of the

deponent for cross-examination, and “unless such deponent is produced accordingly his affidavit shall not be used as evidence unless

by special leave”. Further, under rule 3 it is provided that the defendant may show cause against the motion by affidavit.

7. As is outlined in the judgment of Charleton J., in this case the grounding affidavit in support of the motion for final judgment was

sworn on 15th October, 2013 by Mary Murray (Ms. Murray). The O’Briens’ legal representatives did not seek to have Ms. Murray

cross-examined, nor did the O’Briens seek to show cause against the motion by affidavit disputing the facts deposed to by Ms.

Murray. In short, the defence of the O’Briens before the Master and on appeal to the High Court was the legal argument that Ms.

Murray’s evidence was hearsay and that the requirements of ss. 4 and 5 of the Act of 1879 as amended had not been complied with.

8. Considering Ms. Murray’s affidavit in the light of the requirements of Order 37, the first question which arises is whether, on the

first matter stipulated in rule 1, Ms. Murray could and did “swear positively to the relevant facts to establish the plaintiff’s claim”. In

para. 1 of the affidavit she described her function in the Bank as “a Senior Relationship Manager with the Global Restructuring Group”

and she averred that she had responsibility for the daily management of the O’Briens’ loan facilities with the Bank. She also averred

that she made the affidavit with the authority and consent of the Bank in order to ground its application for liberty to enter summary

judgment. She also averred that she made the affidavit from facts within her own knowledge and from a perusal of the Bank’s books

and records and she believed the same to be true and accurate. Those averments, which were uncontroverted, in my view, were

sufficient to comply with the requirement in Order 37, rule 1 that Ms. Murray could swear positively to the relevant facts to establish

the Bank’s claim. It is difficult to envisage any person in a better position than her so to do, given that at the time she was a senior

official of the Bank with specific responsibility for managing the O’Briens’ loan facilities with the Bank.

9. In order to prove the Bank’s claim, Ms. Murray in her affidavit went on to make the following averments:

(a) In relation to each of the Facility Letters referred to in the special indorsement of claim, she averred that the Bank

had offered to advance the relevant loan facility to the defendants, that they had accepted and had drawn down each

facility and that, as regards each facility, their liability was to be joint and several liability. Ms. Murray also averred as to

the term of each facility and the rate of interest which was to be charged at the time of the offer. She also exhibited a

copy of each of the Facility Letters, which showed acceptance by the defendants endorsed on each. Those copies

corroborate what Ms. Murray averred to and there is nothing in them which casts any doubt whatsoever on the matters

to which she had averred.

(b) Having averred as to the expiration of the term of each of the loan facilities consistently with the terms of the Facility

Letters, which had occurred by the end of 2006, without repayment in full being effected by the defendants, Ms. Murray

went on to aver that by a letter of demand dated 1st February, 2013 the Bank demanded immediate repayment of the

sums due and owing to the Bank by the defendants on foot of the Facility Letters. She exhibited a copy of the letter of

demand. She was one of the signatories of the letter, her co-signatory being described as “Relationship Manager”. The

content of the letter of demand is wholly consistent with the Bank’s claim as set out in the special indorsment of claim on

the summary summons and it is also consistent with the facts as deposed to by Ms. Murray in her affidavit. It clearly

identified each loan facility and set out the amount then due on foot of each. It also set out that liability had arisen for

an additional sum representing additional unpaid accrued interest in respect of the two loan facilities to the date of the

letter of demand.

(c) Having averred that the amount demanded had not been discharged, Ms. Murray, at paragraph 19, deposed to the

fact that there remained due and owing by the O’Briens to the Bank the sum claimed in the indorsement of claim in the

summary summons, that is to say, the sum of €888,920.89.

The foregoing uncontradicted averments, in my view, show that the Bank is entitled to recover from the O’Briens and each of them

the sum of €888,920.89 claimed in the indorsment of claim on the summary summons or, to put it another way, that a prima facie

case has been made out that the O’Briens are jointly and severally indebted to the Bank in that sum in respect of the monies due on

foot of the loan facilities including unpaid accrued interest.

10. Ms. Murray exhibited in paragraph 19 what she described as a statement of account as of the date of the swearing of the

affidavit. That exhibit comprises three pages, each bearing the date 15th October, 2013 and the names of O’Brien and McDermott at

the top. Each page is obviously a print-off of an electronically maintained statement of account over the period from November 2012

to 6th September, 2013. While the print-offs contain limited information, there is absolutely no doubt about the proper inference to be

drawn from them. The first, which refers to Account 14646125, obviously relates to the loan advanced on foot of the Facility Letter

dated 22nd July, 2004 and shows sums debited to the account on four dates at three monthly intervals, which sums obviously reflect

the interest accrued. As of 15th October, 2013 the sum due in respect of that loan was €360,892.52. The second is in the same

format as the first and refers to Account 14646208, which clearly relates to the loan advanced on foot of the Facility Letter dated

8th December, 2005. That print-off shows a balance due of €511,542.20 as of 15th October, 2013. The third, which is also in the

same format, which refers to Account 14646042, clearly refers to the account in respect of unpaid accrued interest, and the balance

due on that account as of 15th October, 2013 was €20,289.80.

11. It is true that there is an inconsistency between the sum due as stated in paragraph 19 (€888,920.89) and the aggregate of the

amounts shown to be due on foot of each of the print-offs in relation to the three accounts (€892,724.52). The explanation for that

inconsistency is patently obvious. The sum referred to in paragraph 19 reflects what was due and what was claimed prior to the issue

of the summary summons, whereas the aggregate of the sums appearing on the exhibited statement is calculated to a later date.

Accordingly, that inconsistency does not raise any question as to the reliability of the evidence on the matters deposed to by Ms.

Murray. In any event, the sum claimed in the summary summons and the sum for which judgment was given in the High Court is less,

albeit only by €3,803.63, than the amount actually due as shown by the statement print-offs.

12. The other matter which, by virtue of Order 37, rule 1, was required to be dealt with in the grounding affidavit of Ms. Murray is

averred to at para. 20 of Ms. Murray’s affidavit. She averred that she had been advised by the Solicitors for the Bank, Ivor

Fitzpatrick, that the O’Briens do not have a defence to the proceedings, either bona fide or at law, and further that any appearance

entered was for the purpose of delay.

13. I am satisfied that, in the absence of any assertion by or on behalf of the O’Briens that the sum, which Ms. Murray, as a senior

employee of the Bank, has deposed is due and owing by the O’Briens to the Bank, is not due, the High Court judge was entitled to

conclude on the basis of Ms. Murray’s affidavit that there was a sufficient evidential basis for giving the Bank liberty to enter final

judgment against the O’Briens. Ms. Murray could, and did, swear positively to the facts showing that the plaintiff was entitled to

judgment in the sum claimed. The Bank did not have to rely, and was not relying, on an entry in a banker’s book being admitted in

evidence to establish the O’Briens’ indebtedness to it in the sum claimed in accordance with the provisions of the Act of 1879 as

amended, so that the necessity to comply with the provisions of ss. 4 and 5 of the Act of 1879 as amended did not arise.

Accordingly, the submission made on behalf of the O’Briens that there was no admissible evidence before the High Court proving the

indebtedness of the O’Briens to the Bank is rejected. Moreover, in my view, counsel for the O’Briens has not pointed to any relevant

authority which suggests that this Court should form a contrary view.

Authorities cited

14. Only one decision of this Court in relation to the application of the provisions of the Act of 1879 as amended was referred to in

argument. That was Criminal Assets Bureau v. Hunt [2003] 2 I.R. 168 (the CAB case). There the issue as to admissibility of evidence

was one only of a number of issues addressed in the judgment of the Supreme Court delivered by Keane C.J., with whom the other

four judges concurred. That issue is explained as follows by Keane C.J. (at p. 174):

“The next issue was as to the admissibility of evidence relied on by the plaintiff for the purpose of establishing the first

defendant’s liability to tax. It was submitted on behalf of the defendants that the plaintiff was not entitled to rely, as it

had done, on bank statements which had come into its possession without proper proof being adduced to the court of the

documents in question. Without such proof, it was said, all of the records in question were hearsay evidence which could

only be admitted if they came within one of the recognised exceptions to the rule against hearsay. It was submitted on

behalf of the plaintiff that, in the circumstances in which they had come into the possession of the plaintiff, the

documents were made admissible by virtue of specific statutory provisions.”

By way of explanation, the plaintiff was the Criminal Assets Bureau and the specific statutory provisions referred to were the

provisions of the Criminal Assets Bureau Act 1996 (the Act of 1996) by virtue of which the Criminal Assets Bureau was established.

15. Turning to the facts of the CAB case, the evidence adduced by the plaintiff on which its entitlement to rely on assessments to

tax raised by an Inspector of Taxes by reference to bank statements which the Inspector of Taxes had obtained, was explained as

follows (at p. 188):

“In this case, . . . a bureau officer, gave evidence of having obtained orders pursuant to S. 63 of the Criminal Justice Act

1994 for the production of accounts in the name of [the defendants] in the named financial institutions. On foot of those

orders, he was furnished with the relevant documents by the financial institutions concerned. This information was

furnished by him to the inspector who subsequently gave evidence and who said that it was on foot of that documentary

evidence that he raised the assessments which were the subject of the proceedings.”

In the frequently cited succeeding paragraph (at p. 189) Keane C.J. stated as follows:

“It is clear, that in accordance with the rules of evidence normally applicable in civil proceedings, the documents in

question could be proved only by their authors giving sworn evidence and being subject to cross-examination, unless

advantage was taken of the provisions of the Bankers Books Evidence Acts, 1879 to 1959. The documents in question,

accordingly, should not have been admitted in evidence in the High Court unless, as the plaintiff contends, they were

admissible under the provisions to which I have referred.”

16. There was undoubtedly an element of complexity in the CAB case because the plaintiff was contending that the documents in

question were admissible in evidence by virtue of the provisions of s. 8(5) and (7) of the Act of 1996. Keane C.J. rejected that

submission and his conclusion on the inadmissibility of evidence issue was set out as follows (at p. 189):

“In the present case, if Detective Garda Fleming had, for any reason, been unavailable to give evidence, the inspector

would have been entitled to give evidence that he had made the assessments on foot of the bank statements furnished

to him by Detective Garda Fleming, provided that the statements were properly proved but not otherwise. I am,

accordingly, satisfied that the evidence in question should not have been admitted in the High Court.”

The crucial statement in that passage is “provided that the statements were properly proved but not otherwise”, presumably, it being

envisaged that they would be properly proved by taking advantage of the provisions of the Act of 1879 as amended or otherwise.

17. The decision in the CAB case, in my view, is of no relevance to the outcome of the Bank’s motion in this case. The Bank did not

have to take advantage of the Act of 1879 as amended to establish its entitlement to judgment in the sum claimed, because the Bank

put evidence before the High Court, which was not contradicted, which as I have found above, showed that the plaintiff was entitled

to summary judgment in that sum.

18. In a case in which the Bank also was plaintiff, Ulster Bank Ireland Limited v. Dermody [2014] IEHC 140 (the Dermody case) in

which judgment was delivered by the High Court (O’Malley J.) on 7th March, 2014, that is to say, just four days after judgment was

given by the High Court in this case, the decision of the Supreme Court in the CAB case was found to be relevant to the

determination as to whether the Bank, as plaintiff in that case, was entitled to enter final judgment on foot of a summary summons.

As in this case, the matter came before the High Court by way of appeal against a decision of the Master dismissing the plaintiff’s

claim. In her judgment, O’Malley J. identified the central issue as whether the plaintiff in that case was entitled to rely on a grounding

affidavit sworn by an employee of Ulster Bank Limited, which was described as a company related to the plaintiff company, i.e. the

Bank, which dealt, on its behalf, with its debt collection process. In that case, the claim was on foot of a guarantee.

19. Recognising that she was bound by the decision of the Supreme Court in the CAB case, O’Malley J. stated that the evidence of

the deponent in that case, Mr. Evans, was not admissible to prove the truth of the contents of the records unless it came within the

provisions of the Act of 1879 as amended. O’Malley J. continued (at para. 50):

“The issue that arises then is whether Mr. Evans can be said to be an ‘officer’ of the plaintiff bank within the meaning of

the Acts. In my view he cannot. I accept that for the purposes of the Acts an employee may be considered to be an

officer of the bank. However, Mr. Evans is not an employee of the plaintiff, but of a separate legal entity. . . . I can see

no legal or factual difference between the service that Ulster Bank Limited provides to Ulster Bank Ireland Limited in debt

collection cases and that provided by Certus to Bank of Scotland, as considered by Peart J. in Stapleton.”

20. The reference to Stapleton in that passage is a reference to the decision of the High Court (Peart J.) in Bank of Scotland Plc v.

Stapleton [2013] 3 I.R. 683 (the Stapleton case). The judgment in that case pre-dated the order of the High Court in this case,

having been delivered on 29th November, 2012. It was a decision on an appeal from the Circuit Court against an order for possession

in favour of the plaintiff, Bank of Scotland Plc, as mortgagee over lands owned by the defendant. The action and the appeal were

heard in both the Circuit Court and the High Court on oral evidence. The oral evidence given on behalf of Bank of Scotland Plc,

referred to in the judgment as “BOS”, was given by Ms. Finnegan. As outlined Peart J. in the judgment (at para. 5), her capacity to

give such evidence was challenged by the defendant on the basis that she was not employed by BOS and therefore her evidence

must of necessity be hearsay, given that she had no personal knowledge of the books and records of BOS. Earlier (at para. 4) Peart J.

had stated that Ms. Finnegan was an employee of Certus, which provided “what she described as customer support to BOS

borrowers, and administrative support to BOS”. A letter of authority on BOS headed paper was put in evidence and that letter

authorised Ms. Finnegan to give evidence on behalf of BOS in the particular proceedings.

21. As is recorded in the judgment of Peart J., Ms. Finnegan referred in her evidence to certain copy statements which she received

from BOS, which related to the defendant’s mortgage account and showed the amount due. She stated that from her personal

computer in Certus she was able to access the records of BOS herself and she could therefore be satisfied as to the amount owing by

the defendant and that she could therefore give evidence from her own knowledge of the books and records of BOS. Her evidence

was that the amount shown in the statements produced to the Court to be due was due and owing by the defendant, thereby

entitling BOS to the order for possession sought.

22. Peart J. identified the issue (at para. 7) as whether the letter of authority was sufficient to render Ms. Finnegan a competent

witness as to the arrears on the defendant’s mortgage account, or whether her evidence in that regard was inadmissible hearsay.

Peart J. then went on to consider, against those facts, the application of the Act of 1879 as amended. He considered a number of

authorities, including the judgment of Keane C.J. in the CAB case. He set out his conclusion as follows (at para. 16):

“Where a bank needs to prove by sworn testimony the amount it is due by a defendant customer, that evidence must be

provided by an officer or partner of the bank – in other words an employee of the bank itself, and not some person

employed by some other company to whom the task of collecting the debt has been outsourced for whatever reason. To

allow otherwise would be akin to a foreign bank engaging a solicitor here to collect the debt, and that solicitor coming to

court and giving evidence as to the amount due to the bank, having been authorised to do so by the bank. The evidence

is necessarily hearsay and inadmissible. It offends first principles, and in my view there is no basis in law for permitting it.”

23. The reference in that passage to the necessity to provide evidence “by an officer or partner of the bank” is reflective of s. 4 of

the Act of 1879. That section provides as follows:

“A copy of an entry in a banker’s book shall not be received in evidence under this Act unless it be first proved that the

book was at the time of the making of the entry one of the ordinary books of the bank, and that the entry was made in

the usual and ordinary course of business, and that the book is in the custody or control of the bank.

Such proof may be given by a partner or officer of the bank, and may be given orally or by an affidavit sworn before any commissioner

or person authorised to take affidavits.”

Insofar as a litigant is relying on an entry in a banker’s book to prove his claim, it is undoubtedly the case that a copy of the entry

should only be received in evidence when proof of the three matters outlined in s. 4 is given by a partner or officer of the bank, that

is to say, by an employee of the bank.

24. The decisions in the Dermody case and in the Stapleton case are both premised on the assumption that compliance with s. 4 of

the Act of 1879 was a prerequisite to establishing prima facie proof of the relevant plaintiff’s claim, which had not been complied with

because the deponent in each case was neither a partner nor an officer of the plaintiff. In fact, the kernel of the complaint made on

behalf of the O’Briens in this case is that there is an evidential deficit in that Ms. Murray’s affidavit did not contain averments to

satisfy the three requirements of s. 4 and a further requirement of s. 5(1)(c) of the Act of 1879 as amended to the effect that the

copy of the entry put in evidence had been examined with the original entry and was correct. While expressing no view whatsoever

as to the correctness or otherwise of the outcome of the Dermody case or the Stapleton case, each of which was decided by

reference to its particular facts, the important point for present purposes is that this case is distinguishable from them on the facts

and, in particular, the facts emphasised at paras. 8 and 9 above, as deposed to by Ms. Murray as a senior officer of the Bank with

responsibility for managing the O’Briens’ loan facilities.

25. Of the authorities to which the Court was referred, the one closest at a factual and procedural level to this case is Governor and

Company of the Bank of Ireland v. Keehan [2013] IEHC 631 (the Keehan) case, in which judgment of the High Court (Ryan J.) was

delivered on 16th September, 2013, that is to say, before judgment was given in this case. The similarities are, first, that the plaintiff

bank’s claim there was brought by way of summary summons. Secondly, the motion to the Master to enter final judgment was

grounded on affidavits sworn by an employee of the plaintiff, Mr. Murphy, who averred that he was a business manager in the bank

and was authorised to make the affidavit and did so from facts within his own knowledge and from a perusal of the plaintiff’s books

and records. Thirdly, the evidence of Mr. Murphy established the sources of the defendant’s indebtedness to the plaintiff, the manner

in which the defendant became liable to discharge that indebtedness and the amount of the indebtedness. Finally, no replying

affidavit was filed on behalf of the defendant, who resisted the application for final judgment on the basis that the plaintiff had not

proved its case and that the plaintiff had not complied with the provisions of the Act of 1879 as amended. As with this case, the

Master dismissed the claim and the matter was before the High Court by way of appeal from that decision.

26. In his judgment, Ryan J. considered the provisions of the Act of 1879 as amended and, in particular, s. 5 as amended by s. 131 of

the Central Bank Act 1989. He stated (at para. 17):

“These provisions contemplate the production in court of a document that will speak for itself as prima facie certification

of the state of a bank account or of a transaction. The evidence specified in sections 4 and 5 is required for verification

of the provenance of the document as having been copied or taken accurately from records kept in the ordinary course of

the bank's business. The Act was primarily intended for cases in which the bank whose records are required as evidence

was not a party. The recent cases decided by this court make it clear that that situation is quite different from a case

like this in which the bank witness bases his or her testimony on an examination of the books.”

27. Ryan J. went on to consider the judgment of the High Court (Clarke J.) in Moorview Developments Ltd. & Ors. v. First Active Plc &

Ors. [2010] IEHC 275 (the Moorview case) and the decision of the High Court (Finlay Geoghegan J.) in Bank of Scotland v. Fergus

[2012] IEHC 131, where the approach adopted by Clarke J. in the Moorview case was followed. He quoted the paragraphs from the

judgment of Clarke J. which are relied on by counsel for the Bank in this case – the oft-quoted paras. 4.8 and 6.3. He made it clear

that, although those cases were plenary actions heard in oral evidence, the fact that the evidence given in the case before him was

on affidavit was not a material distinction. In the case before him, Ryan J. determined that the plaintiff had made out a prima facie

case, having made the following observations about the contention that the requirements of the Act of 1879 as amended had not

been complied with (at para. 27):

“Although the evidence of the contents of the bank's records does not conform to the formal specifications in the 1879

Act as amended in a number of respects, it is nevertheless apparent as a matter of legitimate inference that the evidence

of the defendant's liability emanates from the bank's books and records and that the statements are printed from its

computer records. The point, however, is that the case is not about the 1879 Act and a copy of a bank book but about a

liability arising on a contract entered into by the defendant by written agreement signed by him and witnessed by his

solicitor and an overdrawn current account. The bank is proving its case that the defendant defaulted on a loan and has

not discharged his overdrawn account. It has to establish a sufficient prima facie case that will result in judgment being

given unless the defendant raises some basis of defence.”

As is clear from the agreed note of the ex tempore judgment of Hedigan J. in this case, which is quoted in the judgment of Charleton

J., he adopted a similar approach – that the affidavit of Ms. Murray provided a sufficient evidential basis for acceding to the Bank’s

application for judgment. In my view, that was the correct approach to adopt.

28. The recovery by a plaintiff of a debt or liquidated demand in money payable by a defendant under contract by means of the

summary summons procedure provided for in the Rules can arise in a myriad of factual circumstances. Counsel for the Bank gave as an

example a situation in which the manufacturer of an alcoholic beverage, who had supplied and delivered goods to a customer and

issued an invoice for the goods which had not been discharged, then instituted summary proceedings and brought a motion for

summary judgment. In those circumstances, clearly the provisions of the Act of 1879 as amended have no application. Does that

mean that the evidence put before the Master on the application for summary judgment has to include affidavit evidence of each

employee who was personally involved in the supply and delivery of the goods, issuing the invoice, ascertaining the non-payment of

the invoice and so forth? Clearly it does not. Why then, it must be asked, should a plaintiff bank to whom the Act of 1879 as

amended applies be in a different position in relation to the application of Order 37 of the Rules to it? Was the Act of 1879 intended to

make it more difficult for a plaintiff bank to prove its case, counsel for the Bank in this case asked rhetorically?

29. The answer is that a plaintiff bank is not in a different position to any other plaintiff seeking liberty to enter final judgment for a

debt on foot of a contract, as explained by Clarke J. in para. 6.3 of his judgment in the Moorview case as follows:

“However, the idea that a bank wishing to prove its case in debt against a customer has to produce a separate bank

official who was personally involved in each individual transaction which gives rise to the customer’s current debt is, in my

view, fanciful. A witness from a bank is entitled to give evidence of the bank’s records showing the amount due by a

customer of that bank. That evidence and those records provide prima facie evidence of the liability. If a specific element

or elements of these records are challenged, then the bank might well have a problem if it could not produce a witness

who could give personal evidence of the contested matters. The reason for that problem is not that the bank did not

have evidence of the matter concerned. Rather it is the weight to be attached to that evidence.”

In quoting para. 6.3 in the judgment in the Moorview case in the Keehan case, Ryan J. emphasised the second and third sentences in

that quotation.

30. I respectfully agree with Ryan J. that the comments of Clarke J. are relevant whether the witness is giving oral testimony or

evidence on affidavit to meet the requirement of Order 37 of the Rules. Indeed, it is apt to recall that what the deponent of the

affidavit supporting a motion for liberty to enter final judgment in accordance with Order 37 of the Rules has to swear as to the

factual circumstances. He or she has to swear positively to the facts showing that the plaintiff is entitled to the relief claimed. Given

the nature of the summary procedure provided for in the Rules, which, as Peart J. stated in Motor Insurance Bureau of Ireland v.

Hanley [2007] 2 I.R. 591, was introduced because it “was something considered desirable in the interests of efficiency and cost”, it

would be incapable of achieving those objectives if, say, a bank or a brewery suing for a debt due contractually could not rely on the

evidence of one witness, usually a senior officer or employee, who could swear positively to the relevant facts.

31. It is disclosed in the outline legal submissions submitted on behalf of the Bank that, in an effort to avoid the unnecessary cost

and expense of this appeal on what was termed as “a bare technicality”, the solicitors for the Bank wrote to the solicitors for the

O’Briens on 20th June, 2014 enclosing, on a without prejudice basis, a further affidavit by Ms. Murray, which included an averment

demonstrating, in relation to the copy documents exhibited by her, compliance with the provisions of the Act of 1879 as amended

invoked on behalf of the O’Briens, that is to say, s. 4 and s. 5(1)(c), and inviting the solicitors for the O’Briens to confirm that there

was no basis on which the appeal could continue to proceed. Copies of the relevant inter partes correspondence have been put

before this Court. The invitation was not accepted. That is regrettable because, as it was put in the ex tempore judgment of Hedigan

J., there is “little benefit to the [O’Briens] in stringing things out further”. The reality is that the debt due by the O’Briens to the Bank

has grown since the High Court judgment and continues to grow on a daily basis.

Order

32. For the reasons outlined above, as well as the reasons set out in the judgment of Charleton J., I consider that the appeal should

be dismissed.