by Matthew Austin March-08-2016 in Litigation & Dispute Resolution, Commercial & Business
In October 2015 we commented on the decision of Mr Justice Mahon in the Court of Appeal in respect of a case where Ulster Bank Ireland Limited had pursued a husband and wife pursuant to summary judgment proceedings. The main issue in those proceedings was the capacity of the person employed by the bank in its “Debt Recovery Department” based in Belfast to swear the grounding affidavit proving the debt owed to the bank. Ultimately Mr Justice Mahon concluded that the bank official had demonstrated that she had undertaken sufficient investigation of the bank’s records in relation to the amounts claimed and had been appropriately designated by the bank to ascertain the relevant information.
In a separate case, Ulster Bank Ireland Limited v O’Brien and Ors [2015] IESC 96, the Supreme Court recently considered a related issue concerning the proving of debts owed to banks by defaulting borrowers in the context of summary judgment proceedings. The issue before the Supreme Court was the argument by the defaulting borrowers that the person in the bank who had sworn the grounding affidavit (on foot of which the application for summary judgment had been brought) had not properly proven the debt such as would allow the Court to give summary judgment. The court was satisfied that the deponent for the grounding affidavit, “a Senior Relationship Manager with the Global Restructuring Group”, was in a position to swear an affidavit from facts within her own knowledge and from a perusal of the bank’s books and records in order to prove the debt owed to the bank. The Supreme Court noted that the deponent for the grounding affidavit did not say that she was personally present when the loan agreements were entered into and nor did she say that she was familiar with the signatures of the borrowers.
The court noted that the bank did not have to rely, and in fact was not seeking to rely, on the evidential shortcut provided for by banks in the form of the Bankers Books Evidence Act 1879. Ms Justice Laffoy noted that “a plaintiff bank is not in a different position to any other plaintiff seeking liberty to enter final judgment for a debt on foot of a contract, …”. Ms Justice Laffoy quoted with approval from the judgment of Mr Justice Clarke in Moorview Developments Limited and Ors –v- First Active Plc and Ors [2010] IEHC 275 when he said: “However, the idea that a bank wishing to prove its case in debt against a customer has to produce a separate bank official who was personally involved in each individual transaction which gives rise to the customer’s current debt is, in my view fanciful. A witness from a bank is entitled to give evidence of the bank’s records showing the amount due by a customer of that bank. That evidence and those records provide prima facie evidence of the liability.”
The Supreme Court’s decision clarifies the position with regard to banks’ pursuit of summary judgment proceedings and endorses the simple proposition that a bank is in the same position as any other creditor seeking to prove a contractual debt in the context of summary judgment proceedings.
A full copy of the decision can be found here: http://bit.ly/1U1B60o
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About the Author
Matthew Austin
Matthew is a partner in the Commercial & Business team and has considerable expertise in a range of practice areas, having acted for Irish and International clients in domestic and multi-jurisdictional issues. Matthew has advised in civil and administrative law disputes and in regulatory and advisory matters including insolvency/restructuring, IP, defamation and media law, competition and consumer protection and data protection.