1. I agree with both judgments which have been delivered today. I would wish to make a few observations on the burden and standard of proof.
2. What is in issue in summary judgment applications is whether or not a prima facie case can be made out by the plaintiff. The burden of proof is on the party who asserts the debt is owed. As a general principle, a prima facie case will be made out when, on the evidence available, it would be open to a tribunal of fact, if no other evidence was given, or if that tribunal accepted that evidence even though contradicted in its material facts, to enter a verdict for that party (See O’Toole v. Heavey  ILRM 343 at 344).
3. As described in the judgments of my colleagues, when one is dealing with applications for summary judgment the test is somewhat nuanced for the protection of a defendant. If there is a real conflict on the facts or law, the matter must be remitted for plenary hearing. I would point out that a simple, bald, denial of indebtedness, whether in correspondence, or on affidavit, will not be sufficient to discharge the burden, so far as a defendant is concerned. A defendant’s evidence must set out in a clear way why the sum claimed is said not to be due and owing to a plaintiff.
4. I turn to the instant case. There was no conflict whatever on the facts. No affidavit was filed by the defendant/appellant. Ms. Mary Murray, an Ulster Bank official, swore an affidavit for the plaintiff. She deposed that she, herself, was one of the signatories of the bank’s letter of demand dated the 1st February, 2013. This letter demanded immediate repayment of the sums due and owing on foot of the facility letters. Ms. Murray’s testimony was primary evidence of her own actions. By no stretch of the imagination, could this be characterised as “hearsay” evidence. This was, rather, first hand evidence adduced by the main plaintiff’s deponent, as a signatory of the letter. As described in the judgments of my colleagues, the plaintiff’s threshold test in this case is satisfied. Here it is also satisfied, particularly by virtue of the fact that the Bank’s deponent can herself testify that the letter was written and sent, which letter contained the averments as to the defendants’ indebtedness. Ms. Murray was in a position to swear there was no response to that letter. There is no suggestion it was not received. As Charleton J. points out in his judgment herein, these were the assertions in that letter which, under the rules of evidence, called for a denial. In the absence of such a denial, a court will be entitled to act on the evidence, and grant summary judgment.
5. I mention this feature to illustrate the simple point that, if a plaintiff’s deponent is the author of a letter of demand, then there can be no question of hearsay evidence. As Laffoy J. points out, in her judgment herein, the facts of this case are, therefore, are quite distinct from Criminal Assets Bureau v. Hunt 2 IR 168, and Ulster Bank v. Dermody  IESC 140. If there is no response to the letter of demand, a plaintiff’s case is proved.
6. When seen from these perspectives, the highly technical argument advanced on behalf of the defendants/appellants, and described in my colleagues’ judgments, becomes entirely untenable. The plaintiff’s case is not based on hearsay. It is only common sense that, if a plaintiff makes out a prima facie case, and a defendant does not adduce any, or any meaningful, evidence to rebut it, a plaintiff will be found to have discharged the burden of proof devolving upon it. Similarly, if the facts do not support a legal argument, a defence based on that legal argument will fail, and summary judgment may be granted. Here there was a demand, and the only response was the legal defence put forward, and addressed in the other judgments herein.
7. The summary judgment evidential tests are, by now, well established. I reiterate them here for convenience. The fundamental question is whether there is a fair and reasonable probability of a defendant having a real or bona fide defence, either in law, or on the facts, or both? It is not necessary to show that the defence will succeed, or even will probably succeed. The questions, therefore, can be reduced to the following: First, is it very clear that a defendant has no case? Second, are the issues simple and easily determined? Third, has a defendant disclosed even an arguable defence? Fourth, where there is no notice to cross-examine, can a court be confident, on the affidavit evidence alone, where the justice of the case lies? These tests are set out in more detail in the three leading authorities, viz. First National Commercial Bank v. Anglin 1 IR 75, per Murphy J; Aer Rianta c.p.t. v. Ryanair 4 IR 607, McGuinness J. and Hardiman J.; Harrisrange Ltd. v. Duncan 4 IR 1, per McKechnie J.. As emphasised in each of these decisions, in exercising this jurisdiction, a court should proceed with care and caution.
15. Since R v Christie  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  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  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.
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.
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.
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 2 IR 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 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  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 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.  IEHC 275 (the Moorview case) and the decision of the High Court (Finlay Geoghegan J.) in Bank of Scotland v. Fergus 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  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.
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.