The Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (Act) was signed into law on 6 August 2020 and commenced in full on 14 September 2020.
Amongst other things, the Act addresses an issue raised in a recent case, Promontoria (Aran) Limited v Burns [2020] IECA 87.
Case
The case concerned a fund that had purchased a loan from a bank and sought to rely on documentation provided by the bank, as evidence of the debt. The defendant challenged the admissibility of the documentation evidencing the debt, claiming that the documentation did not fall within the statutory exception to the rule against hearsay in the Bankers' Book Evidence Act 1879 – 1959. The Court of Appeal decided that the affidavit evidence in question merely confirmed what the plaintiff had been told by the bank from which the loan was purchased and amounted to classic hearsay.
This decision created a difficulty in bringing straightforward claims for summary judgment and there was judicial comment to the effect that it was not in the public interest for such claims to require a plenary hearing. Mr. Justice Collins commented that the continuing vitality of the rule against hearsay is unhelpful to the fair resolution of cases and deserves the attention of the legislature.
Act
The Act addresses the issue caused by the decision in Promontoria v Burns by introducing a significant change to the law of evidence in civil proceedings and creating a statutory exception to the hearsay rule. A key principle of the law of evidence is that evidence should, in general, be capable of being tested in court, especially by cross-examination.
The Act creates a presumption that the information contained in business records is proof of the facts contained in those records without the relevant individual giving evidence or being cross-examined. The presumption may be challenged / rebutted, but the burden shifts to the challenging party to establish that the evidence contained in those records is untrue or incorrect.
The Act includes safeguards as to the operation of the procedure and provides that business records shall not be admitted in evidence where the court is of the opinion that to do so would contrary to the interests of justice. In making this assessment the court must consider all the circumstances and whether there is a reasonable inference that the information is reliable and the document is authentic. The court must also consider whether there is any risk that the admission or exclusion will result in unfairness to any other party in the civil proceedings.
Conclusion
The Act provides a statutory basis for the admissibility of business records in civil proceedings and should alleviate some of the difficulties experienced when seeking to recover debt in summary proceedings, where the plaintiff was not the original lender.
Promontoria (Aran) Limited v Burns [2020] IECA 87
The Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020
