Ulster Bank Ireland Ltd v Egan & Anor

Factual and Procedural Background

These appeals arise from three orders for summary judgment granted by the High Court on 3rd March 2014 in favour of the plaintiff, Company A, against the defendants, Defendant One and Defendant Two. The judgments were for sums of €121,232.67, €128,845.80, and €127,808.52 respectively, each including statutory interest and costs, with a two-month stay on execution. The first judgment was against both defendants jointly based on their guarantee of debts owed by Company B to the plaintiff. The second and third judgments were against Defendant One and Defendant Two respectively, relating to personal loan accounts and guarantees. The defendants objected to the summary judgments and sought referrals to plenary hearings. The plaintiff’s applications were supported by affidavits sworn by Mr. Clerk, an employee of the plaintiff’s debt recovery department, while the defendants responded with affidavits and objections concerning the adequacy of proof under the Bankers Books Evidence Act 1879.

Legal Issues Presented

1. Whether the affidavits sworn by Mr. Clerk satisfy the requirements of the Bankers Books Evidence Act 1879, as amended, to prove the defendants’ indebtedness to the plaintiff.
2. Whether Mr. Clerk’s status as an employee of the plaintiff or an associated but distinct company affects the admissibility and sufficiency of his affidavits as evidence.
3. Whether the summary judgments should be upheld given the defendants’ acknowledgment of indebtedness and the procedural rules governing summary proceedings.

Arguments of the Parties

Defendants' Arguments

• The defendants contended that the affidavits sworn by Mr. Clerk were defective as they failed to comply with the Bankers Books Evidence Act 1879 because Mr. Clerk identified himself inconsistently as an employee of the plaintiff, Company A, and of a separate but associated entity, Company C.
• They argued that these inconsistencies undermined the proof of indebtedness and rendered the affidavits inadmissible as hearsay evidence not properly grounded in the plaintiff’s records.
• The defendants maintained that if Mr. Clerk was not an employee of the plaintiff at the time of swearing the affidavits, he could not properly prove the debts on behalf of the plaintiff.
• They did not seek cross-examination of Mr. Clerk but raised these points as a basis to challenge summary judgment and to seek a plenary hearing.

Plaintiff's Arguments

• The plaintiff relied on the positive averments in Mr. Clerk’s affidavits that he was employed by the plaintiff and had access to and had diligently perused the plaintiff’s bankers’ books and records relevant to the defendants’ accounts and liabilities.
• The plaintiff asserted that any inconsistencies in Mr. Clerk’s description of his employer or workplace were minor or clerical and did not affect the validity of the evidence.
• It was further argued that the defendants admitted the debts claimed, rendering any defence meritless and justifying summary judgment.

Table of Precedents Cited

Court's Reasoning and Analysis

The court focused on the central issue of whether Mr. Clerk’s affidavits met the evidentiary standards under the Bankers Books Evidence Act 1879. Despite inconsistencies in his stated employer and addresses across the three affidavits, the court accepted the High Court’s finding that these were minor or clerical errors, possibly explained by Mr. Clerk’s employment across related entities or different locations over time.

The court emphasized that Mr. Clerk positively averred his employment by the plaintiff and his access to and diligent perusal of the plaintiff’s bankers’ books and records relating to the defendants’ accounts. The court found this sufficient prima facie evidence under Order 37, rule 1 of the Rules of the Superior Courts, which requires a deponent to swear positively to facts showing entitlement to relief and belief that no defence exists.

The defendants’ acknowledgment of indebtedness further undermined any defence, rendering a referral to plenary hearing unnecessary and unjustified. The court noted that no cross-examination of Mr. Clerk was sought, which would have been the procedural mechanism to test his evidence.

Precedent cases were analyzed and distinguished where relevant, with the court aligning with the principle that routine banking records and evidence by an employee with access to such records constitute admissible and sufficient proof of debt in summary proceedings.

Holding and Implications

The court DISMISSED the appeals, thereby upholding the summary judgments entered in favour of the plaintiff against the defendants.

The direct effect is that the defendants remain liable for the sums adjudged, with the judgments enforceable subject to any stay granted. No referral to plenary hearing is warranted given the defendants’ admissions and the sufficiency of the plaintiff’s evidence. The decision does not establish new precedent but reaffirms established principles concerning the admissibility of bank records and the evidentiary status of affidavits sworn by bank employees in summary debt recovery proceedings.