A New Statutory Exception To The Rule Against Hearsay

• Published date: 21 August 2020
• Subject Matter: Litigation, Mediation & Arbitration, Criminal Law, Trials & Appeals & Compensation, Crime
• Law Firm: Matheson
• Author: Ms Julie Murphy-O'Connor, Tony O'Grady, Brendan Colgan, Grainne Dever and Mairéad Ní Ghabh'in

A new statutory exception to the Rule against Hearsay - The Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020

The Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (the "Act") was recently passed by the D'il to deal with a number of practical issues arising as a result of the COVID-19 pandemic. The Act introduces a variety of reforms in both civil and criminal law, including provision for remote hearings and electronic filings. Of particular interest for creditors in summary proceedings, is the introduction of a new statutory exception to the rule against hearsay which now allows for the admission of business records as evidence in civil proceedings in certain circumstances.

The rule against hearsay and the judgment in Burns

The law of evidence concerning hearsay refers to any testimony given by a witness about words spoken or a document generated out of court by another person who is not produced in court as a witness, where the testimony is presented to prove the truth of what is asserted in the words or document involved. This clearly covers an exceptionally wide range of important documents including letters, medical records, business records and public records. It can result in documents being inadmissible in evidence because the person who had originally created the documents was not available to be cross-examined in court.

Heretofore, the exceptions to the rule against hearsay generally relied upon in summary proceedings were (i) the statutory exception in the Bankers' Books Evidence Act 1879-1959 (which can only be invoked by a bank) and (ii) the common law exception based on a 'course of dealings' between the defendants and the plaintiff or its predecessor in title (which has its origins in Moorview Developments v First Active plc [2010] IEHC 275, Bank of Scotland v Fergus [2012] IEHC 131, Bank of Ireland v. Keehan [2013] IEHC 631, and was developed in Ulster Bank v O'Brien [2015] 2 IR 656 - see our previous client update here).

The rule against hearsay has created some difficulties for those seeking to obtain summary judgment, particularly for loan purchasers as was highlighted in the recent case of Promontoria v Burns [2020] IECA 87. In this case, the Court of Appeal noted that the deponent's source of knowledge was not identified save with respect to the specific documents he exhibited and, even in respect of the exhibits, it was not clear whether original books and records had been examined. The only statement of...