Debts to bank were proved by a course of dealing amounting to admissions

Charleton J (majority decision): Admissibility of bank records - hearsay - Bankers’ Books Evidence Act 1879 - course of dealing.

"It is unnecessary, in those circumstances, to look for an exception to the rule against hearsay because all of these documents, in terms of their acceptance by the company, the involvement of Charles Fergus with that company, his entry into guarantees for the purpose of furthering the business enterprise of the company, and the periodic statements of the ongoing financial situation, together with the relevant letters of demand, constitute a course of dealing between the parties which in other circumstances would be called admissions. There is therefore no reason to have resort to any principle, of very limited application in any event, that an inference can be drawn from the failure of a person to answer a statement of fact in circumstances where a reasonable person who knew the opposite to be the case would issue a form of denial."

McKechnie J (dissenting on one issue): Appeal from High Court - European Communities (Cross-Border Merger) Regulations 2008 (S.I. No. 157/2008) - merger of bank with parent company - claim to enforce guarantees and indemnities - facilities advanced to company - demand for repayment of €7.796 million - appointment of receiver - demands from guarantor - summary summons issued in 2010 - 17 guarantees - claim remitted to plenary hearing - whether guarantees enforceable - Statute of Frauds (Ireland) 1695 - failure of bank's witness to give admissible evidence - calculation of debt - refusal by judge to allow witness to give evidence of amount due by company - re-examination - whether evidence sufficient to prove debt - judgment granted in High Court in the sum of €9.2 million - costs - whether the guarantor had received a fair trial - admissibility of evidence - validity and enforceability of the guarantee - Ord. 63A, rule 5 and rule 22(1) - requirement to serve written statement of witness as to fact or of an expert - witness statements - case management - Bankers Books Evidence Acts 1879 – 1959 - hearsay - course of dealing - validity of guarantee - whether guarantee invalid and unenforceable. (https://courts.ie/view/judgments/99c44ab3-c9c7-4542-a54a-250c751efc7e/1223db1b-9938-4516-b621-edce3dec8f41/2019_IESC_91_1.pdf/pdf)

"The issue with Mr. Raftery as a witness however was that he was not in the position to give admissible evidence as to the amount due by the Company. The figure given by him in his witness statement, was the same as that given in the witness statement of Mr. Waldron, calculated as of the 14th March, 2011: €9,275,439.47. During examination in-chief it was discovered that this figure had not come from Mr. Raftery’s own calculations or from his own examination of the books, records or other data held by the bank and rather that it had been directly adopted from the statement of Mr. Waldron whom he was replacing. Matters did not improve from the Bank’s point of view in the sense that it had no other witness available, who had supplied a witness statement, who could give admissible evidence of the amount due."

"Firstly, has the plaintiff brought itself within the provisions of the 1879 Act, for if it has, no further discussion is required, save to ensure that its provisions are complied with in any individual case. Secondly, if the Act is neither invoked or complied with, is there an alternative legal basis or bases upon which such a debt can be proved."

"In any event in conclusion, it is quite apparent that I favour the approach adopted in Hunt, Dermody and Stapleton. Accordingly, the 1879 Act must be complied with. Self-evidently, Mr. Moroney was not an “officer of the bank” at the time he tendered this evidence. He was as described by the trial judge “a former official of the bank”. Incorrectly in my view, she cited Moorview – 2010 as an authority to qualify him to give evidence. She was mistaken in this regard. Consequently, that evidence should not have been permitted."

"It is difficult to see how any argument can be advanced on the Statute of Frauds (Ireland) 1695. Even assuming that the contractual document is correctly described as a “guarantee” only, and not also as an indemnity, it appears to me to be self-evident that its terms comply with the requirement of s. 2 of that Act. Those requirements, insofar as are relevant, provide that the agreement upon which the action is brought, or some note or memorandum thereof, must be in writing and must be signed by the person charged therewith, or signed by some other lawfully authorised person."