A judgment delivered last month by the Supreme Court in the case of Ulster Bank –v- O’Brien  brings welcome clarity as to how banks can comply with the provisions of the Bankers' Books Evidence Acts, 1879-1959 (the “Acts”) when attempting to prove a claim for monies due to it from a defaulting borrower.
The Traditional View
Bank statements are often relied upon as evidence before the courts by litigating parties. One of the objects of the Acts was to relieve banks, when they are not a party to the litigation, from the necessity of attending at court and producing their books as evidence under subpoena.
In Moorview Developments v First Active , the court summarised the purpose of the Acts as follows:
“…The purpose of the [Acts] is simply to assist in the presentation of routine evidence before the courts and avoids the necessity of requiring an official of a Bank to attend, presumably on foot of a subpoena duces tecum [order of the court], to give evidence every time a party wished to establish at an ordinary civil trial what in many case, would be routine banking information. [...] the Acts are designed to facilitate the giving, in a convenient way, of evidence which could be secured in any event by requiring the attendance in court of a relevant official of the Bank concerned accompanied by relevant extracts from the Bank’s records.”
In a series of cases, the courts maintained this position and acknowledged the commercial reality that a bank’s records are central to many disputes to which the bank is neither a party nor has an interest. The courts appeared to accept that it would be onerous and unnecessary for bank staff to be compelled to attend each and every trial where bank statements and records were given in evidence.
Mixed interpretation in the High Court
The position appeared to change with the High Court judgment of Ulster Bank v Dermody , which found that full compliance with the Acts was required and that the appropriate “officer” from the bank be in attendance to give evidence regarding bank records in accordance with the Acts. Since the Dermody judgment practitioners have gone to great lengths to ensure that banking clients have been in full compliance with the Acts when attempting to prove a claim for a debt due.
Clarity from Court of Appeal
A Court of Appeal judgment last year in Ulster Bank v Egan  appeared to restore the judicial view of the Acts prior to the Dermody decision. The court quoted with approval the views in the Moorview decision and distinguished the Dermody judgment on its own facts.
The position regarding evidence described in the Acts as interpreted in the Egan decision was confirmed by the Supreme Court in Ulster Bank –v- O’Brien in December 2015.
After a period of uncertainty as to the appropriate interpretation of the Acts, the traditional and logical view has been restored. The Supreme Court has now held that compliance with the Acts in terms of acceptable evidence can be achieved by the appropriate person, usually an officer of the bank, swearing an affidavit to the effect that a bank statement was an entry in the ordinary books of the bank, that it was made in the ordinary course of business and that the books were in the custody of the bank.
This is welcome news for all banks!Please note that this article is for information purposes only and does not constitute legal advice. Specific advice should always be taken in given situations.
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