knowledge | 20 March 2020 |

Supreme Court Examines Scope of Bankers’ Book Evidence Acts

The Bankers’ Book Evidence Acts 1879-1989 have once again been considered, this time by the Supreme Court in the recent judgment of Bank of Scotland plc v Fergus. In his judgment, McKechnie J sets out his views in relation to the competing lines of authority, favouring the approach adopted in Criminal Assets Bureau v Hunt, Ulster Bank Ireland Ltd v Dermody and Bank of Scotland v Stapleton.

Background

In this case,1 Bank of Scotland plc (the “Bank”) sought summary judgment in 2008 against a company owned by Charles Fergus for multiple sums advanced by the Bank over a period from March 2003 to November 2007.  In the Bank’s application for summary judgment, issues arose as to the admissibility of the Bank’s evidence. The witness who gave evidence on behalf of the Bank was a Mr Moroney, a former employee of the Bank. The High Court held that although Mr Moroney was not a current employee of the Bank, he was entitled to give evidence of the Bank’s records in relation to the indebtedness of the company to the Bank. The evidence was held to be admissible and prima facie evidence of the liability of the company.

The appellant filed a notice of appeal on certain grounds, one of which related to the admissibility of Mr Moroney’s evidence on the basis that it did not meet the requirements of section 4 of the Bankers’ Book Evidence Acts 1879-1989 (“BBEA”). This provides that evidence of a debt must be properly proven by an officer or partner of a bank (ie someone who currently holds that position). Relying on the authorities in Dermody 2 and Stapleton,3 the appellant submitted that Mr Moroney was not an employee of the Bank at the time and his evidence should not be admitted.

Although the appeal was ultimately dismissed, McKechnie J allowed the appeal with respect to the inadmissibility of evidence stating that the BBEA was not complied with as Mr Moroney was a former employee of the Bank at the time of tendering his evidence. McKechnie J held that evidence should not have been permitted as the requirements of the BBEA had not been met in circumstances where evidence was admitted to establish the company’s indebtedness in reliance upon the BBEA.

Impact of this judgment

The judgment of McKechnie J (in rejecting the High Court decision of Finlay Geoghegan J) re-affirms the position already set out in Hunt,4  Dermody and Stapleton, that when seeking to rely on the BBEA, a copy of any entry in a banker’s book that has been first proved as one of the ordinary books of the bank can only be proved by a ‘partner or officer’ of the bank, and then only in compliance with that legislation.

The High Court had relied on an alternative line of authority set out in Moorview Developments Ltd v First Active Plc.5 In Moorview the court held that evidence of a witness based on documents maintained by First Active plc was treated as prima facie evidence of the liability sought to be established and that First Active plc did not have to rely upon or conform to the requirements of the BBEA. However, in the Supreme Court McKechnie J disagreed with Moorview stating that if such an authority was correct, the BBEA would in effect be disregarded.

The judgment of McKechnie J equally re-affirms the position confirmed in Stapleton that the provisions of the BBEA require the necessary proofs to be given by a current employee of the bank and as in the case of Stapleton, not an employee of a company to which the bank had outsourced certain administrative functions.

In addition, an entity which is not a bank, cannot rely upon the BBEA to evidence a debt owing as it does not come within the scope of the legislation.

However, that is not the end of the matter. It should be noted that Charleton J also gave a judgment in the proceedings and his views on the admissibility of business records in civil proceedings did not entirely concur with those of McKechnie J.

Comment

The BBEA will only apply to banks (or any other institution to which the BBEA applies, those being the post office savings bank or a savings bank certified under the BBEA). In concluding his judgment McKechnie J noted that banks given their important role in society had been the specific subject of legislative intervention in this area (namely, the BBEA).

How can we help?

Our Finance Group together with our Disputes Group at McCann FitzGerald have significant experience of providing strategic advice on banking related issues and on procedural issues in commercial litigation. Your usual contact in McCann FitzGerald would be happy to provide further information.


  1. Bank of Scotland plc v Charles Fergus [2019] IESC 212.
  2. [2014] IEHC 140.
  3. [2012] IEHC 549.
  4. [2003] IESC 20.
  5. [2010] IEHC 275.

This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.

Key contacts