Supreme Court dismisses appeal allowing hearsay evidence in bank loan debt enforcement via failure to deny.

An Chúirt Uachtarach

The Supreme Court

Record number: 2013/2746 S

Appeal number: 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 Mr Justice Charleton delivered on Wednesday the 16th day of December 2015

1. This appeal concerns the admissibility of hearsay evidence within the particular commercial context of default on a bank loan.

Background

2. By a summary summons issued on the 26th August 2013, the plaintiff/respondent Ulster Bank sought judgment against Rory O’Brien,

Danny O’Brien and Michael McDermott, the defendants/appellants, in the sum of €888,920.89. An appearance was entered on behalf

of the defendants apart from Michael McDermott on the 19th September 2013. Judgment was sought against Michael McDermott in

the Central Office of the High Court. In accordance with the procedure chosen by Ulster Bank to pursue its claim, a notice of motion

was issued on the 16th October 2013, returnable before the Master of the High Court, seeking judgment in that regard against the

other two alleged debtors. The notice of motion was supported by an affidavit of Mary Murray, sworn on the 15th October 2013,

describing herself as “Senior Relationship Manager with the Global Restructuring Group of Ulster Bank”. All quotes in this judgment are

as written and uncorrected as to grammar including the clear misuse of lower or upper case letters. That affidavit purported to prove

the loan to the defendants/appellants by exhibiting relevant correspondence, extracts from computer records and a letter of demand.

Her affidavit was not replied to by the defendants/appellants, just as the letter of demand addressed to each of them prior to the

issue of proceedings remained unanswered. On the 14th November 2013, the Master of the High Court refused to grant summary

judgment for Ulster Bank, but he acceded to an argument on behalf of two of the defendants/appellants, Michael McDermott not then

being represented, that the affidavit constituted inadmissible hearsay evidence. Consequently, it was ordered by the Master that “the

said Motion be and the same is hereby dismissed” and that Ulster Bank pay the costs of Rory O’Brien and Danny O’Brien. That order

was appealed by notice of motion, dated the 18th November 2013, and it came on for hearing before Hedigan J on the 3rd March

2014 in the High Court. The appeal was allowed and it was ordered that Ulster Bank should recover the sum claimed against the first

and second named defendants/appellants, and it was further ordered that they should pay the costs of the plaintiff in the High Court

and of the motion before the Master. The agreed note of the ex tempore judgment of Hedigan J reads:

The Affidavit of Ms Mary Murray sworn on the 15th day of October 2013 and the averments therein referring to entries in

the books of the Plaintiff bank did not amount to inadmissible hearsay.

The Deponent’s averments were similar in form and content to those frequently appearing in Affidavits grounding such

applications and they provide a sufficient evidential basis for granting the Plaintiff’s application for liberty to enter final

judgment against the Defendants.

The error contained in the Deponent’s Affidavit highlighted by Defence Counsel did not amount to grounds for denying the

relief sought. Affidavits are frequently presented to the Court which contain minor technical errors.

The Defendants were not denying that the sums claimed were owed by them.

There was little benefit to the Defendants in stringing things out further and in the circumstances the Court would grant

the Plaintiff bank the relief sought. …[C]osts of the motion and of the earlier Master’s hearing [are awarded] to the

plaintiff.

3. A stay of five weeks was put on the consequential monetary judgment, by order of the High Court dated the 2nd April 2014. By

notice of appeal dated the 13th March 2014, on behalf of the first and second named defendants/appellants, it is asserted that the

trial judge erred in the admission of hearsay evidence and that he also erred in not finding that Ulster Bank had failed to comply with

sections 4 and 5 “of the Bankers’ Books Evidence Act 1879 (as amended), proving that the book entry produced by the Bank is one of

the ordinary book entries maintained during the activities of the Bank and is in the continuing custody of the Bank and the entry was

made in the ordinary course of business and a copy of the entry sought to be adduced as evidence has been examined against the

original in the custody of the Bank and is correct.” While other points are referenced in the notice of appeal, it is the hearsay point

alone which has been argued.

The proofs offered by Ulster Bank

4. As the trial judge indicated, the proofs offered by Ulster Bank are similar to those which have apparently been accepted by the

courts in thousands of other loan cases as establishing proof of debt and of default in payment. Be that as it may, if the form and

content of the proofs are such that they are inadmissible hearsay and they must be excluded, the appeal must be allowed.

Consequently, the averments in that affidavit and the correspondence exhibited should be closely examined.

5. Mary Murray 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” and that she made it “from facts within my own knowledge and from a perusal of the Bank’s books

and records, save where otherwise appears and where so otherwise appearing I believe the same to be true and accurate.” The

affidavit records that judgment was sought pursuant to two loan facilities agreed on the 23rd July 2004 and on the 14th December

2005. She does not say that she was personally present when those agreements were entered into and nor does she say that she is

familiar with the signatures of the borrowers. Even if she had been present, some of the signatures do not amount to a signature at

all but to an unidentifiable squiggle. The first letter exhibited is dated the 22nd July 2004 and it records an offer to the borrowers to

assist with the purchase of ten acres of development land in County Offaly. The letter, as exhibited, shows the names of the

defendants/appellants as borrowers, and it shows the loan as the sum of €329,000, for a term of two years, but repayable on

demand. An examination of the exhibited letter shows a signature by Dave Kavanagh, apparently a manager in “Business Banking”,

dated signatures from Danny O’Brien and Rory O’Brien, and a dated squiggle from Michael McDermott. Terms and conditions are

appended. The second letter exhibited is dated the 8th December 2005 and it records an offer to the same borrowers in the sum of

€471,000 to assist in the purchase of twelve acres of development land in County Offaly. An examination of the letter shows the

same signatures as the previous letter. Conditions were as previously. The next exhibit to this grounding affidavit is a letter of

demand from Ulster Bank to the defendants/respondents dated the 1st February 2013. That letter precisely references the facilities

and loans and it continues:

We would advise you that the Facilities are in arrears and, in addition, you are in breach of the terms of the Facility

Letters.

We now hereby demand immediate repayment of the Facilities together with accrued interest and all other amounts

outstanding under the Facility Letters. The outstanding amount of each of the Facilities as at 1st February 2013 is as

follows:-

2004 Facility - The outstanding amount of the Facility as at the date of this demand (including unpaid and accrued

interest to the date of this letter of demand) is €353,053.91. Interest and charges as provided for in the 2004 Facility

Letter will continue to accrue until all sums owing have been paid in full.

2005 facility - The outstanding amount of the Facility as at the date of this demand (including unpaid and accrued

interest to the date of this letter of demand) is €500,431.49. Interest and charges as provided for in 2005 Facility Letter

will continue to accrue until all sums owing have been paid in full.

The Facilities - Additional unpaid accrued interest in respect of the Facilities to the date of this letter of demand is

€19,374.58.

We further give you notice that if the whole of the above sums are not paid forthwith we reserve the right to exercise,

without further notice to you, all and any of the powers available to us by law or under the security provided to us in

respect of or in connection with the Facilities.

6. That letter was signed by Mary Murray, as to facts of which she would have had personal knowledge, and by another bank

manager. Additionally, there were three computer printouts as to the loans. Whereas before the High Court and before the Master

some argument was made as to a small calculation error, this has not been pursued on appeal.

7. The affidavit of Mary Murray, as well as exhibiting the documents, precisely describes them and the relevant interest rates. The

affidavit states that the loan facilities were accepted by each of the defendants and drawn down in full, and it states the relevant

interest rates at the time. The affidavit also details the demand to repay the monies and that each of the defendants/appellants

“have failed, neglected or refused to discharge the remains due and that there is no defence to the proceedings. All of this is

standard fare in an affidavit seeking judgment for a liquidate amount in the High Court.

8. Concisely put, the argument advanced on this appeal on behalf of the defendants/appellants is that this affidavit, with its exhibits,

does not amount to any admissible proof that either the ostensible borrowers were loaned the money, drew down the money, ran

interest up at the rate specified, had a demand made of them, did not answer that letter, or did not repay the money. It is said on

their behalf that in the sphere of criminal law the Criminal Evidence Act 1992 reformed the law, making business records admissible at

criminal trials, including maps, plans, graphs, photographs and information on computer or on microfilm, but puzzlingly, this reform was

never extended to the proof of debts. On the other hand, banks had an exception to the hearsay rule which they were entitled to

exercise, namely that mentioned in the notice of appeal, and as this particular bank did not use the Act of 1879, there was a total

failure of proof.

The hearsay rule

9. A statement made by a person, other than one which is made by a witness while giving oral evidence in proceedings, is inadmissible

as evidence of any facts stated. Hence, the witness cannot depose as evidence facts that are unknown to the witness but merely

recounted by the witness from information from an absent individual. A witness cannot bolster their own testimony by calling other

witnesses to depose that they had been told the same facts to which they testify; the rule against self-corroboration, as it is called,

but which is part of the hearsay rule. Records made in the course of business are not, for that reason, an exception to the hearsay

rule. Of course, if made in or around the time of events in question, whether in the course of a business or any other transaction, a

witness may refresh memory by reference to such contemporary records. Despite apparent inherent reliability, no entitlement to

overstep the hearsay rule is created simply because records were made by someone in the course of business. Thus, in England, in

Myers v Director of Public Prosecutions [1965] AC 1001, the House of Lords ruled that the exceptions to the hearsay rule could not

be expanded on the basis that the evidence sought to be given is peculiarly reliable or is the best available. While our courts have

taken no such rigid position, there has been little sign that the principles as to the inadmissibility of hearsay evidence inherited in

1922 are subject to change on the basis of reliability. Indeed, in The People (DPP) v Prunty [1986] ILRM 716 it was held by the Court

of Criminal Appeal that an official from the Department of Posts and Telegraphs was not entitled to give evidence that he had looked

up the relevant internal records to discover that a particular telephone number was assigned to a particular public phone box from

which ransom demands had been made in that kidnapping case. Inherent reliability as a ground for admission was not argued on that

appeal, however. The hearsay rule, it must be noted, has limitations. In Cullen v Clarke [1963] IR 368, at page 378, Kingsmill Moore J

indicated:

In view of some of the arguments addressed to the Court, it is necessary to emphasise that there is no general rule of

evidence to the effect that a witness may not testify as to the words spoken by a person who is not produced as a

witness. There is a general rule, subject to many exceptions, that evidence of the speaking of such words is inadmissible

to prove the truth of the facts which they assert; .... This is the rule known as the rule against hearsay.

10. As he noted, hearsay is subject to a myriad of exceptions, many of which are discussed in the classic judgment just quoted, and

which are also to be found in digestible form in Irish Cases on Evidence (2nd Edition, 1982) by JSR Cole and Evidence by McGrath (2nd

Edition, 2014). The origins of the exceptions, while most often lost in time as to their justification, share certain characteristics. The

edition of Archbold’s Criminal Pleading, Evidence and Practice (London, 1922), current on Irish independence, states the justification

for the hearsay rule at page 370 as being: “(a) what the other person said was not put upon oath” and “(b) the party who is to be

affected by it had no opportunity of cross-examining him.” Glanville Williams in his The Proof of Guilt: A Study of the English Criminal

Trial (3rd Edition, 1963) offers a slightly different justification at page 196:

These, then, are the two principal justifications for the hearsay rule: the desirability of having the witness personally

present in court, where his demeanour can be observed and his story can be tested by cross-examination by the other

party or by trained counsel of that party’s choice, and the risk that a story when passed on may become garbled.

11. Nonetheless, experience over centuries has indicated that: in particular circumstances, declarations accompanying actions may

explain the mind of the person doing the act; admissions against interest are unlikely to be false; entries in public registers will tend to

be corrected if inaccurate; statements on the point of death may have a solemnity equal to or greater than the taking of an oath;

and recordings in the course of duty of facts observed by deceased persons are not to be excluded simply because of the absence of

the note taker from court. Analysing the exceptions tends towards the conclusion that the law has admitted them because the

unreliability considered to haunt evidence by report, and that the taint of uncertainty over hearsay evidence, itself may be displaced

where the reliability of the testimony is so obvious as to be unarguable. As Glanville Williams records at page 208-209, the 1945-1946

Nuremberg Trials satisfactorily dispensed with the rules of evidence in favour of a single rule that the tribunal should “admit any

evidence which it deems to have probative value” leaving the weight to be attached to such evidence as a matter for the tribunal.

12. On this appeal, there has been no apparent request for the creation of any new exception to the rule against the admissibility of

hearsay evidence. In this case, such is not necessary. The Bankers’ Books Evidence Act 1879 (as amended) provides at section 4 for

the admissibility of a “copy of an entry” kept in the books of a bank, but it also provides that same should not be admissible:

… 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 and

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.

A further condition is set out in section 5, which provides that the copy:

… shall not be received in evidence under this Act unless it be further proved that the copy has been examined with the

original entry and is correct.

Such proof shall be given by some person who has examined the copy with the original entry, and may be given either

orally or by an affidavit sworn before any commissioner or person authorised to take affidavits.

Section 131 of the Central Bank Act 1989 updates section 5 to enable reception in respect of non-legible formats – in other words,

computer records. Section 191 of the National Asset Management Agency Act 2009 is among provisions extending this parent

legislative privilege to the officials of the organisation which took over the disastrous debt burdens of our banks after 2008, operating

in their stead as what has become known as a “bad bank”.

13. Banks, however, are not the only commercial organisations which lend money. Credit is the inescapable component of business.

Trust that monies advanced, or goods delivered, will be honoured by repayment is essential to the relationships of honour, which

keeps the wheels of commerce oiled. It would be extremely odd for there to be a rule in favour of banks and the admissibility of their

records and further, but for there to be no assistance as to the proof of debt for any other organisation or person offering goods or

services in the Irish market. It is to be remembered that in the 1870s, what was then known as the best evidence rule, to the effect

that proof must be offered in accordance with the best evidence available, was then current. Hence, copies could not be made of

gigantic banking ledgers but, rather, they had to be produced in court. The best evidence rule has, since that time, weakened and

ultimately, it has ceased to exist in favour of a test as to whether the evidence offered is admissible or inadmissible Whether there

might be better evidence of an event or transaction, merely goes to the weight that might be given particular testimony. No one now

argues that because there is a video recording of a transaction that the participants so recorded cannot give evidence, whereas it

was once argued that a note as to what tombstone read could not be admitted because the tombstone had not been physically

produced.

14. Whereas case law from the High Court has been urged on both sides as establishing sound reasoning in favour of the admissibility

of business records or against that proposition in banking cases, and where some of that case law seems to have been reasoned upon

the nature of the proceedings being on affidavit, or the applications being interlocutory, or the records being at one remove from the

organisation creating same, it is unnecessary to proceed to any analysis of those cases: see Mooreview 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

Stapleton [2013] 3 IR 63 references the requirement to comply with the Bankers’ Books Evidence Act 1879 and Ulster Bank Ireland

Ltd v Dermody [2014] IEHC 140 took a similar approach. No comment is made as to the reasoning of any of these cases. They are

not now before this Court on appeal.

15. Since R v Christie [1914] AC 545, it has generally been held that statements made in the presence of an accused are always

admissible in evidence. It follows that statements made in the presence of a party to civil proceedings may be admitted in evidence

also. It would be facile to translate the French expression “Qui ne dit mot consent” into a rule that failure to deny an accusation

amounts to an admission. The law does not say that in all circumstances. In fact, an ancestral adage comes closer “Is ionann toil ‘s

éisteacht”, silence can be, not must be, acquiescence in a statement.

16. Silence as acceptance requires a nuanced analysis of particular circumstances before any instance of it can be admitted to the

category of exception to the hearsay rule under the rubric of admissions. Nonetheless, the principle is supported by strong authority.

In court cases, it must be remembered that the particular circumstances are dependent upon procedural safeguards. In the Rules of

the Superior Courts 1986, particularly Order 2 and Order 26, and in the rules which have generally been applied to practice, indicate

default of answer as a means to proceed to judgment for a plaintiff. Further, it would have become impossible for the courts to

dispose of cases without a rule of pleading that what is not denied from an allegation in a statement of claim is accepted.

Procedurally, the requirement that persons should be personally served with legal proceedings, absent an order of a court for

substituted service, operates to ensure that there is proof of awareness that allegations are being made, which can result in such

serious consequences as orders in damages or for injunctions. In the absence of an appearance, where liquidated debt is involved,

the party issuing a summary summons may move to judgment in the Central Office of the High Court. When appearance is entered,

the matter must become before the Master of the High Court. He has administrative, but no judicial, power. In the event of a contest

of fact, the matter must go away from the Master and up before the High Court for decision. Where a credible defence is disclosed

through an opposing affidavit, the matter must be remitted for plenary hearing. Here it is claimed on behalf of the

defendants/appellants that it is enough to simply deal with sworn testimony, even that which has all the indications of being based in

fact and in reason, by merely arguing that a party has an entitlement to make no denial.

17. Of themselves, the documents exhibited in the affidavit of Mary Murray carry indications of reliability. These are bolstered by her

sworn evidence coming, as it does, from a position where she has had the means of knowledge to support what she says. Of those

documents, perhaps the most important is the letter of demand. That letter was sent to the defendants/appellants and it was never

replied to. The sworn affidavit was furnished to the legal representatives of the defendants/appellants and it was never replied to.

Both the sworn and the unsworn documents amount to the same thing: a party is making an allegation that money has been borrowed

and that a debt has not been repaid, which is now due for payment. Depending upon the particular circumstances, an inference can

be drawn, where a reasonable person would feel compelled to issue some form of denial, whereby the absence of contradiction can

amount to the acceptance of the contrary case; in other words, an admission against interest. This principle is based on sound

authority. It is also one of the primary exceptions to the rule against hearsay.

18. In Bessela v Stern (1877) 2 CPD 265, a breach of promise to marry case, a response by the defendant that he would give the

plaintiff money to go away, by reason of it not being a denial, was accepted as evidence where the allegation made was, “You always

promised to marry me, and you don’t keep your word.” In the Court of Appeal, at page 272 Branwell LJ stated:

A claim is made on a man in respect of goods sold and delivered, and he does not deny it. If a statement is such that a

denial of it is not to be expected, then silence is no admission of its truth; but if two persons have a conversation, in

which one of them makes a statement to the disadvantage of the other, and the latter does not deny it, there is

evidence of admission that the statement is correct.

Brett LJ agreed with this statement at page 272 thus:

The defendant by his silence admits what the plaintiff said, that the defendant always promised to marry her. It was not

necessary that the evidence should show a mutual promise to marry. The evidence need not prove a promise; all that is

wanted is corroborative evidence of it.

In Wiedemann v Walpole [1891] 2 QB 534, another action for breach of promise to marry, Lord Esher MR referenced, at pages 537 -

538, commercial usage stating:

[T]here are cases - business and mercantile cases - in which the Courts have taken notice that, in the ordinary course of

business, if one man of business states in a letter to another that he has agreed to do certain things, the person who

receives that letter must answer it if he means to dispute the fact that he did so agree. So, where merchants are in

dispute one with the other in the course of carrying on some business negotiations, and one writes to the other, “but you

promised me that you would do this or that,” if the other does not answer the letter, but proceeds with the negotiations,

he must be taken to admit the truth of the statement. But such cases are those wholly unlike the case of a letter

charging a man with some offence or meanness.

19. Thus, whether a failure to answer an allegation would make what otherwise might be hearsay into an admission is entirely

dependent upon the factual circumstances. In R v Christie, at pages 563-565, Lord Reading reiterated the basic rule thus:

A statement made in the presence of one of the parties to a civil action may be given in evidence against him if it is

relevant to any of the matters in issue. And equally such a statement made in the presence of the accused may be given

in evidence against him at his trial.

…

In general, such evidence can have little or no value in its direct bearing on the case unless the accused, upon hearing

the statement, by conduct and demeanour, or by the answer made by him, or in certain circumstances by the refraining

from an answer, acknowledged the truth of the statement either in whole or in part, or did or said something from which

the jury could infer such an acknowledgement, for if he acknowledged its truth, he accepted it as his own statement of

the facts.

Lord Moulton at page 559 was in agreement to the same effect:

There remains the second ground, namely, that it is evidence of a statement made in the presence of the accused, and

of his behaviour on that occasion. Now, in a civil action evidence may always be given of any statement or

communication made to the opposite party, provided it is relevant to the issues. The same is true of any act or behaviour

of the party. The sole limitation is that the matter thus given in evidence must be relevant. I am of opinion that, as a

strict matter of law, there is no difference in this respect between the rules of evidence in our civil and in our criminal

procedure.

20. Analysing the various circumstances under which a failure to deny particular and detailed allegations, based upon a pre-existing

commercial or other relationship, and backed up by correspondence, is a matter for the application of this principle to particular

circumstances. Cross & Tapper on Evidence (11th Edition, 2007) at page 42 affirms the need for close analysis before admission

through silence is accepted as testimony:

A thin stream of civil cases has adhered to the proposition that failure to answer an allegation is capable, depending upon

the circumstances, of amounting to evidence against the silence party… The principle underlying the cases in which

reliance has been placed on the maxim res ipsa loquitur is based on the importance of the absence of an explanation.

The necessity for close analysis is reaffirmed by Heydon and Ockelton in Cases and Materials on Evidence (4th Edition, 1996) at page

147-148:

In cases where the inference may be drawn, the test is whether a denial could reasonably be expected in the

circumstances. The circumstances of a business relationship commonly permit the inference to be drawn; a defendant’s

silence in the face of correspondence becomes much more relevant in business cases than in affiliation cases. …

Regard must be paid to the status of the accuser. …

Another factor is the situation of the party charged and the circumstances surrounding the charging…

When will an indignant reply be expected? One test is the seriousness of the accusation, e.g. a charge of incest by a

daughter to her father (R v Power [1940] QSR 111), or a breach of promise of marriage (Bessela v Stern (1877) 2 CPD

265, CA) … Another is the solemnity of the form of the accusation; so an executor’s failure to dispute an affidavit alleging

that he owes the estate money may be an admission (Freeman v Cox (1878) 8 ChD 148).

This principle is also referred to in Phipson on Evidence (18th Edition, 2013):

The mere failure to answer a letter or object to an account… will not necessarily imply an admission of its contents… But

it is otherwise if the letter is sent under circumstances which entitle the writer to an answer; or where it is the ordinary

practice of people to reply.

21. Thus, analysing whether a failure to respond in the face of an accusation can amount to a declaration against interest must

depend upon a myriad of factors. What follows cannot be definitive but merely indicative: an analysis of the nature of the relationship

between the parties is essential; the circumstances under which an allegation is made must be taken into account, what is solemn,

being different from what is social and from what is jocular or mischievous; the nature of what is claimed may amount, on the one

hand, to a bare allegation or, on the other, to an apparently definitive statement backed-up by documentary proof; but finally, the

test must be that a failure to respond, in circumstances when a denial would clearly be required, would amount in terms of the

conduct of reasonable people to an admission.

22. None of this is to change or in any way alter the rule that accepting that which is said in the presence of a party to civil

proceedings, or someone who is the accused in a criminal trial, is admissible as such.

This case

23. Civil proceedings for the enforcement of debt are an exercise of the constitutional right to litigate. Such a case carries procedural

solemnity and is attendant with safeguards as to service. Within that context, the swearing of an affidavit and its service in court

proceedings which make allegations that a sum is due, can be accepted in the absence of denial, where the form and the content of

what is deposed to and the exhibits supporting it carry sufficient indications of reliability. Part of the matrix of facts to be considered

is whether the documentary evidence establishes a relationship whereby the obligation to pay for goods or services, or to repay a

debt, are properly referenced and exhibited. In that regard, the procedural safeguards of court proceedings as to service, coupled

with the ability to make an appearance and to formally deny the existence of a debt, that where otherwise to contest liability to pay

by reference to a collateral contract or some defect in goods and services, or some other appropriate defence, may give rise to an

ability in the court to act against the party failing to make any denial. As a matter of law, where circumstances indicate that a

reasonable person would have responded to an allegation in the context of an appropriate commercial relationship where money is

due, but does not so respond, an admission may be set up. The court may act in that situation.

24. In that context, it cannot be said that the judgment of Hedigan J is in any way at fault. In the circumstances, this appeal should

be dismissed.