Claim for summary judgment in the sum of €27 million was grounded on inadmissible hearsay

Baker J (nem diss): Application for summary judgment - decision to adjourn to plenary hearing - two related cases - admissibility of evidence - proof of debt - claim by assignee of original lender - hearsay rule - claim for c€27 million - evidence on affidavit - plaintiff put on full proof of debt - affidavit by officer of plaintiff company - books and records - proof of debt by lending institutions - whether hearsay - whether within exceptions identified by authorities - rule against hearsay - evidence of claim for debt - Bankers’ Books Evidence Act 1879 - plaintiff not a 'bank' - 'course of dealing' - oral or affidavit evidence - whether letter of demand was sufficient to prove a debt - evidence of course of dealing - whether plaintiff had access to the books and records of the original lender.

"It is important to note at this juncture that the sole defence on which Mr. & Ms. Burns rely is the admissibility of the evidence adduced by Promontoria in support of its application for summary judgment. There was, for example, no argument made by them that they might have a defence on the merits or that they had an arguable basis on which that defence ought to be referred to plenary hearing."

"It is difficult to discern a clear line of authority from this short summary of the current law. However, I conclude that the present state of the law is that in order to rely on evidence which does not come within the Act of 1879 because the plaintiff is not a bank, a claim in debt can be established by credible evidence emanating from a course of dealing, from the nature of business records that show that dealing and which carry indications of reliability, especially if those records are in the form of statements of account sent from time to time in the course of a lending transaction, which, taken together with evidence from an authorised person of an analysis and inspection of books and records, whether documentary or electronic, can in the absence of a denial or challenge which is more than a mere bald assertion, be sufficient to establish a claim."

"I am prepared to accept, at least on a prima facie basis, the argument that the guarantees are evidence of the creation of a guarantee, as the guarantees were created by deed and carry therefore the solemnity of that process, and the guarantee is made, not merely evidenced, by deed. But the present case is not concerned with the validity of the guarantees but rather with whether there is sufficient proof of the underlying debt."

"But I do not consider that the letters of demand or the facility letters prove their contents. What is required to be proved by Promontoria is that monies were advanced on foot of certain agreements for repayment and subject to certain conditions, including a condition providing for the payment of interest, and that the monies fall due for payment. The content of the letters is relevant to show that demand was made but not whether the debt was due, or by whom and in what amount."

"I cannot therefore ignore the omission of a simple averment in the numerous affidavits sworn on behalf of the plaintiffs that the originals of the various documents are held by or on behalf of Promontoria and that the documents exhibited are true copies, or that the deponents have examined the books and business records of Ulster Bank relating to the loans."

"For the reasons stated it seems to me that the trial judge was correct, and there is insufficient evidence of the type of business records carrying indications of reliability, nor evidence sufficient to establish a course of dealings between Promontoria and the defendant to engage the recent authorities which recognise that a court may draw an inference when in the context of an established business relationship a defendant does not deny or otherwise dispute in a concrete and credible way the evidence adduced in proof."

Collins J (concurring): Whether evidence adduced by plaintiff was sufficient to allow grant of summary judgment - admissibility of business records.

"Equally, neither Promontoria nor the Servicer had any involvement in the decision to demand payment of the guarantee debts or to issue these proceedings when such demand remained unsatisfied because (on the facts here) those events pre-dated the assignment from Ulster Bank Ireland Limited to Promontoria. It would appear to follow that neither Promontoria nor the Servicer is in a position to “swear positively” to those matters insofar as that may be a requirement to obtain summary judgment."

"Provision for the admission of such records has been made on the criminal side which gives rise to the curious position that the hearsay rule applies more strictly in an application for summary judgment than it does in a prosecution for a serious criminal offence. The continuing vitality of the hearsay rule in this context is, as O’Donnell J says, almost always unhelpful to the fair resolution of cases and, when circumstances permit, it clearly deserves the attention of the legislature."