Admissibility of Business Records in Civil Litigation: New Evidentiary Rules
By Sharon Delaney, Beauchamps
The Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 (the Act), makes several welcome changes to practice and procedure in civil litigation. The Act, the majority of which commenced in August 2020, has significant practical implications for civil litigation, particularly in relation to the admission of business records in civil proceedings.
Any record in the form of a document, compiled in the course of business, shall be presumed to be admissible as evidence of the truth of the facts asserted, without the need for a witness to formally prove the document. The Act contains safeguards for genuine disputes regarding admissibility.
The Need for Reform: Law Reform Commission (LRC) Report 2016
The new measures mirror those already in operation in criminal proceedings, where business records have been admissible in criminal cases since the enactment of the Criminal Evidence Act, 1992 (the 1992 Act).
The LRC report recommended that records compiled in the course of business should be admissible in civil proceedings, as an inclusionary exception to the rule against hearsay. The report observed that business records are the most common form of hearsay evidence presented in litigation; therefore, their legal status is particularly important.
Prior to the Act
Prior to the Act, the admission of business records in civil cases was governed by common law hearsay rules. Any document which offends those principles would be excluded. There are two specific rules at common law which dictate if a document will be received in evidence. Firstly, a party must prove the content of a document and secondly, a party must prove the document is authentic and/or validly executed.
Case Law before the Act
The absence of a general exception to hearsay rules in relation to business records was highlighted in the House of Lord’s decision in Myers v DPP  AC 101. Records of undoubted reliability were deemed inadmissible. That decision was addressed by the 1992 Act, which created a wide-ranging exception for business records in criminal cases. In several recent civil cases involving the recovery of debt, the Judiciary has referenced this lacuna and the need for urgent attention by the legislature.
Admissibility of Business Records in Civil Proceedings
The Act creates a presumption that any record in document form compiled in the ordinary course of business is admissible. The Act also creates a presumption that the information contained in the business records is proof of the facts contained therein, without the relevant individual giving evidence. The presumption may be rebutted, but the burden shifts to the challenging party to establish that the evidence contained in those records is untrue or incorrect. To benefit from the exception, the document must be a business record, which is:
- compiled in the ordinary course of business;
- supplied by a person who had personal knowledge of the matters dealt with; and
- in the case of information in nonlegible form that was reproduced in legible form, it was reproduced in the course of the normal operation of the reproduction system concerned.
The exception does not apply in certain circumstances, to include where:
- the information is privileged from disclosure in civil proceedings;
- the information is supplied by a person who would not be compellable to give evidence at the instance of the party wishing to introduce the information; or
- information compiled for the purpose, or in contemplation, of any criminal investigation, investigation or inquiry carried out under Statute, or in contemplation of civil, criminal, or disciplinary proceedings.
The Act creates a requirement to provide notice that business record evidence will be relied on and specifies how an objection to such records may be raised. To benefit from the statutory exception, the party seeking admittance must provide notice of the intention to submit a relevant document into evidence, together with a copy of the document, no later than 21 days before the commencement of the trial. This is an important procedural safeguard. Notice of an intention to adduce evidence is only required if copies of the document have not already been provided. Therefore, in many cases, notice may not be necessary; in actions heard on affdavit, the business records are likely to have been provided as exhibits or in plenary actions where they are provided by way of discovery.
Court Discretion to Exclude Evidence
Importantly, the Act contains 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 be contrary to the interests of justice. In making this assessment, the Court must consider all the circumstances to determine 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 to the proceedings.
Copies of Business Records
The Act contains provision for the admission of copies of business records, subject to authentication, approved by the Court. This abolishes the primary evidence rule in respect of business records and provides a wide discretion to the Court to accept copies, as admissible evidence.
The new evidentiary rules for admissibility of business records will be of significant assistance to a party seeking to meet their evidential threshold. In particular, the changes will be important for financial institutions in summary judgment proceedings, where the plaintiff was not the primary lender. However, it is equally important to recognise that third-party funds will continue to experience problems overcoming evidential deficits, in the absence of complete statements of account for each loan acquired.
Sharon DelaneyGGI member firm
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Published: GGI Insider, No. 112, March 2021 l Photo: Madrugada Verde - stock.adobe.com