The High Court has refused Ulster Bank Ireland Limited’s appeal against the dismissal of its application for final judgment against Michael Dermody, finding that the bank records relied on were not admissible through the evidence of an employee of a separate, related company.
The bank’s claim was based on guarantees Dermody had given for credit facilities to two companies. It sought liberty to enter final judgment for €102,386.12. Its application was supported by affidavits from Richard Evans, a recoveries clerk in Ulster Bank Limited’s Belfast Collections and Recoveries Department. Evans had access to the account file and said he had examined the bank records and related documents.
The Master of the High Court struck out the bank’s motion after Dermody argued that Evans’s evidence was hearsay and did not meet the Bankers’ Books Evidence Acts. Ulster Bank Ireland appealed. It argued that Evans could give evidence from his own examination of the records, or alternatively that his role within the Ulster Bank group allowed him to satisfy the statutory requirements. The bank also argued that the Acts’ use of the word “may” left room for other witnesses to prove the records.
Justice Iseult O’Malley said she could not reconcile earlier High Court decisions treating business records as prima facie evidence at common law with the Supreme Court’s decision in Criminal Assets Bureau v Hunt. Applying Hunt, she held that Evans’s evidence could not prove the truth of the records’ contents unless it complied with the Bankers’ Books Evidence Acts.
The Acts allow a bank’s records to be proved by specified witnesses, including a partner or officer of the bank. O’Malley accepted that an employee may qualify as an officer, but held that Evans was employed by Ulster Bank Limited, not by the plaintiff, Ulster Bank Ireland Limited. The companies’ close relationship did not change their separate legal identities. She also rejected the argument that “may” made the statutory witness categories optional.
The court did not decide the underlying guarantee claim or enter judgment against Dermody. It refused the appeal, leaving the Master’s dismissal of the application in place. The judgment was delivered on 7 March 2014.