The Supreme Court has allowed Charles Fergus’s appeal on whether a bank debt was proved with admissible evidence, but dismissed his challenges to the trial procedure and to the validity of the guarantee relied on by the bank.
In a judgment delivered on 18 December 2019, Mr Justice William McKechnie said Bank of Scotland plc had to comply with the Bankers’ Books Evidence Acts when relying on bank records to prove the debt. The witness who gave evidence about those records, Julian Moroney, had been a former Bank official by the time he testified. McKechnie J. concluded he was not then an “officer of the bank” qualified to give that evidence under the statutory procedure. The High Court judge had been wrong to admit it, he said.
The case arose from guarantees Charles Fergus had given in connection with lending to Fergus Haynes (Developments) Limited, where he was a director and chief executive. The Bank sued in 2010 to recover sums it said remained due under the guarantees. The High Court entered judgment for the Bank for €9,211,764, relying on a guarantee dated 1 June 2006. The Bank’s original plaintiff, Bank of Scotland (Ireland) Limited, had merged with its parent, Bank of Scotland plc, which continued the proceedings as successor.
At the High Court hearing, the Bank’s expected debt witness was unavailable because of illness. The trial judge allowed the Bank to call Moroney, subject to conditions: his evidence was confined to account figures in records disclosed before trial, the claim could not include later increases, and the hearing was adjourned so Fergus could consider the evidence. McKechnie J. rejected the appeal against that decision, finding the conditions preserved the fairness of the trial. Fergus’s argument that a dismissal could prevent fresh proceedings through res judicata therefore fell away.
The Supreme Court also rejected Fergus’s challenge to the 2006 guarantee. McKechnie J. upheld the conclusion that the company’s name was identifiable despite missing parentheses, that a sheet added after the execution clause did not invalidate the remaining guarantee, and that the written, signed document met the Statute of Frauds (Ireland) 1695. He also rejected the argument that later guarantees displaced the 2006 guarantee.
The formal conclusion was to allow the appeal on the admissibility issue and dismiss it on the procedural and guarantee-validity issues. The judgment does not state in its conclusion what further order should follow or whether the High Court judgment was set aside in whole or in part.