It is common for a bank employee to set out in affidavit or in oral evidence the basis for the debt and a calculation of the arrears.
One defence a defendant might use is that the evidence does not comply with Bankers Books Evidence Act 1879 (BBEA). There have been diverging authorities on this.
The BBEA provides inter alia that a bank record may be proved by an officer of the bank averring that the record is a true copy. The full requirements of the BBEA are summarised in schedule 1, a summary taken from the judgment of the Cregan J. in ACC v. Byrne.
It is still cumbersome for a plaintiff bank to comply with the 1879 Act as amended – an officer would have to swear the affidavit or give oral evidence. The term officer is not defined in the BBEA. Some cases indicate an employee is sufficient (Vesta Mortgage Investments Limited v. Devine and Permanent TSB v. Beads) while others suggest a director is required (the master in Bank of Ireland v. Keehan) . Where the evidence is given by an employee of a service company (such as Certus acting for Bank of Scotland), the arguments is made that this does not comply with the BBEA because an employee of another company could not be an officer of the bank.
The cases which required compliance with the BBEA
In Bank of Scotland Plc v. Stapleton (Unreported High Court 29/11/12) the High Court overturned an order for possession in the Circuit Court where an employee of Certus, a service company, gave oral evidence of the mortgage arrears. The court held compliance with the BBEA was required and was not proved where the witness was not an employee or officer of the plaintiff.
In Ulster Bank v. Dermody (Unreported High Court 7/3/14) the court held that affidavit evidence of bank records must comply with the BBEA. The evidence of an employee of a sister company of the plaintiff did not comply the BBEA and therefore the claim for summary judgment was refused.
In ACC Bank Plc v Byrne (Unreported High Court 21/7/14) the court held that affidavit evidence in accordance with BBEA was required and had not been proved. The court distinguished Mooreview Developments Ltd v. First Active Plc, on the basis that Moorview involved a plenary hearing not an affidavit hearing and the BBEA had been complied with in that case (there must be some doubt about the italicised finding. Clarke J. did not find the formalities of the BBEA were complied with as such).
The cases which did not require compliance with the BBEA
In Mooreview Developments Ltd v. First Active Plc (Unreported High Court 9/7/10) the court held the evidence did not need to comply the BBEA for proof of arrears, where a witness gave oral evidence that the records produced were taken from the banks electronic books and faithfully recorded what was present in them.
In Bank of Scotland v Fergus (Unreported High Court 30/3/12) the court held that oral evidence from an employee of the service company, who had first-hand knowledge of the bank’s dealings with the borrower, did not need to comply with the BBEA.
In Bank of Ireland v. Keehan (Unreported High Court 16/9/13) the court held that the formal requirements of the BBEA do not have to be met. The business manager of the bank branch swore an affidavit exhibiting the loan account statements showing the amounts due, and stating that an events of default had occurred. The master of the High Court had struck out the plaintiff’s claim on the basis of non-compliance with the BBEA. The decision of the master was overturned by the High Court.
In Ulster Bank Ireland Ltd v. O’Brien  IESC 96 the plaintiff had submitted bank statements and letters of demand in an affidavit constituted hearsay. The Supreme Court held it was admissible without analysing whether it complied with the BBEA. The High Court had found that it did so comply with the BBEA. Laffoy J. specifically held that compliance with the BBEA was not strictly necessary.
There are conflicting decisions as to whether compliance with the BBEA is required to prove bank records. If the definition of officer in the BBEA is deemed to include employees, then compliance with the BBEA should be relatively easy. In Vesta Mortgage Investments Limited v. Paul Devine And Mary Devine (Unreported High Court 6/3/14) it was sufficient that a bank manager exhibited copy statements of account in respect of each of the twelve facilities granted to the defendants, together with other averments to satisfy the BBEA. A similar conclusion was reached in Permanent TSB v. Beads 25/2/14.
Separate from the BBEA, in terms of proofs, the courts have held that it is not sufficient for the bank to simply aver that a sum is owing. In Bank of Ireland v. Macken 2016 IEHC 804 the High Court refused to grant judgment on a summary summons because it was arguable that the bank were relying on the wrong facility letter in the affidavit and the bank had not detailed how it arrived at it’s calculations.
If a service company is involved, it is best to have an affidavit sworn by an employee of the bank not just the service company, and for the affidavit to hit the points in Schedule 1.
1. A printed copy of a computer entry (e.g. a bank account statement) contained in the bank’s computer records
2. Formal proof, given by an officer of the Bank,
(1) that the computer records (from which the copy of the bank statement was taken) are one of the ordinary computer records of the bank
(2) That the entry of the account details into the computer records was made in the usual and ordinary course of the business of the bank
(3) That the computer records are in the custody or control of the bank
3. Formal proof that the bank account statements printed off from the computer and adduced in evidence have been reproduced directly from the bank’s computer records
This must be proved by the person in charge of the reproduction.
4. Formal proof (if there is a copy of a copy) that the copy of the bank statement produced in court is a correct copy of the bank statement printed off from the computer (see 3 above) and that the two have been compared
[This must be proved by the person who has compared the copy produced in court with the original copy )
5. Formal proof that the copy reproduced in court is also a copy which, in effect, could have been reproduced directly from the bank’s computer records
[This must also be proved by the person in charge of the reproduction at 3 above
6. Formal proof that the copy of the bank statement produced in court has been examined with the original entry in the bank’s computer records and that it is correct
The content of this article is intended to provide a general guide to the subject matter and is not intended to be a substitute for legal advice. Specialist advice should be sought about your specific circumstances.