The High Court allowed Julia Stapleton’s appeal against a Circuit Court possession order, ruling that evidence from an employee of the bank’s outsourced loan manager was inadmissible to prove the mortgage arrears. It set aside the part of the Circuit Court order granting possession and awarding costs to the bank.
Mr Justice Michael Peart delivered the judgment on 29 November 2012. The Circuit Court had made the possession order on 24 January 2012 in favour of Bank of Scotland plc over property including a dwellinghouse in Rathcoole, County Dublin. The property secured borrowings to the bank by Ms Stapleton and her late husband under a mortgage deed dated 9 September 2005.
The appeal concerned the evidence used to establish the amount due, rather than a detailed dispute about the account. Bank of Scotland had no physical presence in Ireland after taking over the assets and liabilities of Bank of Scotland (Ireland) Limited. It outsourced management of its Irish loan portfolio to Certus, which was based in Dublin.
Joanne Finnegan, a Certus manager, gave evidence for the bank. She said she could access the bank’s records through her computer and had reviewed statements showing the amount claimed. The bank had authorised her in writing to give evidence. Ms Finnegan accepted in cross-examination that she was neither an officer nor an employee of the bank.
The judge held that the Bankers’ Books Evidence Acts did not make her competent to prove the bank’s records and the debt. Under the legislation, proof that records were ordinary bank books, entries were made in the ordinary course of business, and the books were in the bank’s custody or control had to come from a bank partner or officer. The judgment said the legislation did not remove the requirement to prove a copy entry or permit that task to be delegated to an employee of another company, even if that person had direct access to the bank’s computerised records.
The court rejected the bank’s reliance on an earlier High Court decision involving a witness who was an officer of the bank in that case. It concluded that Ms Finnegan’s evidence about the records and amount due was hearsay and inadmissible. The appeal was allowed, and the possession and costs provisions of the Circuit Court order were vacated. The judgment does not state that the mortgage debt was extinguished or determine any further steps in the proceedings.