This case related to a claim by ACC Bank plc (the "Bank") for a summary judgment against the first named Defendant on foot of a personal guarantee of €250,000 in respect of a loan facility to a company of €3.9m. One of the grounds of defence related to the Bankers' Book of Evidence Acts 1879-1989 (the "BBEAs"). The Defendant argued that the evidence produced by the Bank did not satisfy the provisions of the BBEAs and was therefore inadmissible.
Cregan J. held that the purpose of the BBEAs was to relax the "best evidence rule" (which requires original documents to be produced in court) and the rule against hearsay. However, he held that the BBEAs provided for certain safeguards to ensure the accuracy of the evidence adduced in reliance on the BBEAs.
On the facts, Cregan J. held that the Bank's evidence was deficient. This was because in referring to copies of a statement of account and a spreadsheet detailing the total amount due, the deponent did not say:
- that at the time of "the
making of the entry the banker's book was one of the ordinary
books of the bank";
- that the entry was made in the usual
and ordinary course of business; and
- the banker's book was in the
custody or control of the bank. He also held that the formal
requirements of section 5 of the BBEAs had not been complied
The case illustrates the difficulties inherent in relying on the BBEAs and the technicality of their provisions. It should be noted that the Defendant in this case did not seek to allege that the monies were not in fact advanced or that his guarantee was in some other way invalid.
Banks seeking to rely on the BBEAs must try to ensure that:
- an employee or officer of the
plaintiff gives evidence of the amount due and owing by the
- an employee or officer must also
formally prove the contractual basis for the Defendant's
liability (i.e. the facility letter, loan agreement, guarantee
- in order to guard against the argument
that this evidence is not "best evidence", the
original documents should be available for court; and
- in case an argument is made that the
evidence of the bank's witness is hearsay, the evidential steps
set out in Sections 4 and 5 of the BBEAs should be followed insofar
as possible. These Sections provide that:
- A copy of an entry in a banker's book will not be received in evidence unless it is first proven that the book was at the time of the making of the entry one of the ordinary books of the bank, 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 (this proof to be given by a partner or officer of the bank); and
- A copy of an entry in a banker's
book shall not be received in evidence unless it is further proven
that the copy has been examined with the original entry and is
correct (proof to be given by some person who has examined the copy
with the original entry).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.