Ireland: The Supreme Court Provides Welcome Clarity On The Bankers' Books Evidence Acts

Ulster Bank Ireland Ltd. V Rory O'Brien, Danny O'Brien & Michael McDermott [2015] IESC 96


The decision reached by the Supreme Court (Charleton J., Laffoy J. and McMenamin J.) on 16th December, 2015 in Ulster Bank Ireland Ltd. v Rory O'Brien, Danny O'Brien & Michael McDermott has provided some welcome clarity around questions related to the application of the rule against hearsay and the Bankers' Books Evidence Act 1879 (as amended) (the "Act") in enforcement proceedings arising out of default by a borrower on a bank loan.


The issue in the case was whether the affidavit of Ms. Mary Murray, a senior relationship manager with Ulster Bank Ireland Limited ("UBIL"), grounding UBIL's application for summary judgment against the defendants in the amount of circa €890,000, was admissible, given that some of the evidence in her affidavit was hearsay, yet her affidavit did not meet the requirements of Sections 4 and 5 of the Act.

Sections 3, 4 and 5 of the Act created a statutory exception to the rule against hearsay, permitting a bank's records to be admitted as prima facie evidence of the transactions and accounts in those records. To avail of this exception to the hearsay rule, evidence must be given by an officer of the bank that the books relied upon are from the ordinary books of the bank, and that the entries were created in the usual course of the bank's business, and the books are in the bank's custody or control. Under Section 5, specific matters must be proven to show that the copy record presented to the court is an accurate copy of the original record.

The defendants did not deny the debt, but argued that Ms. Murray's affidavit did not comply with the requirements of the Act and that it therefore constituted hearsay evidence which was inadmissible.

The Master of the High Court found in favour of the defendants, dismissing UBIL's motion for liberty to enter final judgment. On appeal, the High Court (Hedigan J.) overturned the decision of the Master, finding in favour of UBIL. The defendant borrowers appealed the High Court decision to the Supreme Court.

The Supreme Court decision

The Supreme Court unanimously found in favour of UBIL. Written judgments were given by all three judges. Judgment was given by Charleton J, with whom the other two judges agreed. His reasoning was as follows:

1. the defendants had not replied to UBIL's letter of demand or responded to the affidavit of Ms. Murray in which it was contended that the monies were owed by the defendants. In some cases, the absence of a denial or contradiction can amount to an admission against interest, which is one of the primary exceptions to the rule against hearsay. This was one such case;

2. the content of, and the documents annexed to, Ms. Murray's affidavit were reliable as Ms. Murray was in a position of familiarity with the facts that were fundamental to UBIL's claim; And

3. due to the foregoing finding that Ms. Murray's affidavit was not inadmissible hearsay evidence, it was not necessary for UBIL to rely on the Act.

Laffoy J had regard to Order 37 Rule 1 of the Rules of the Superior Courts, under which UBIL had brought its motion for liberty to enter final judgment. This rule requires that the motion be supported by an affidavit sworn by a person who can swear positively to the facts showing that the plaintiff is entitled to the relief claimed. The judge noted Ms. Murray's senior position in UBIL, and her responsibility for daily management of the relevant loans (she had signed the letter of demand). The judge commented that it was difficult to envisage any person in a better position to swear the affidavit than Ms. Murray. Her uncontradicted averments about the loans, the demand, and the sums due showed that UBIL was entitled to recover from the defendants. The judge agreed that UBIL did not have to rely on the Act.

In his judgment, McMenamin J added that a defendant wishing to contest an application for summary judgment must do more than make a bald denial of indebtedness; the defendant's evidence must set out clearly why the sum claimed is said not to be owed. He also stated that if a plaintiff's deponent is the author of a letter of demand (as Ms. Murray was), there can be no question of hearsay, and if there is no response to the demand, a plaintiff's case is proved.


The decision of the Supreme Court is important, as there have been several recent High Court cases involving technical defences raised by borrowers, in which the judgments given have created confusion for parties seeking to exercise their contractual rights in enforcing their security and seeking judgment following borrower default. These cases included Bank of Scotland v. Fergus, Bank of Scotland v. Stapleton, Governor and Company of Bank of Ireland v. Keehan, Ulster Bank Ireland Limited v. Dermody, and ACC Bank plc v Byrne.

The decision is likely to be of particular interest to entities that have purchased loan portfolios in Ireland over the last number of years. As some such entities are not licensed by the Central Bank of Ireland, they are not "banks" as defined in the Act and cannot, therefore, avail of the exception under the Act to the rule against hearsay.

It is clear from this decision that the necessity for banks to comply with the Act, although not entirely displaced, does not arise where the bank's evidence of debt is uncontested and is given by a witness who is familiar with the relevant account. Borrowers must present a substantial defence to the evidence supporting the claim against them rather than merely having to "muddy the waters" when seeking to resist judgment.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions