Business records now presumed admissible in civil litigation

New legislation simplifies and modernises the rules on the admission of business records

The old rule for admitting business records was that they had to be proven by a witness at trial. This even applied to routine records such as delivery dockets, purchase orders, invoices, and statements of account. In practice, litigants would usually agree to admit such records (and there could be costs consequences for failing to do so). However, if parties insisted on formal proof of uncontroversial documents, the traditional rule could lead to difficulties, delay, and increased costs, particularly where the documents were created many years ago.

The Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (the Act) reforms the position in line with Law Reform Commission recommendations ¹. Business records will now generally be admissible without the need for a witness to prove them. However, there are safeguards for genuine disputes regarding admissibility.  

The reforms bring Irish civil procedures more in line with criminal law practice, the approach taken to banking records, and the approach to evidence in civil proceedings in other common law jurisdictions (including the UK). 

This briefing note summarises the relevant provisions.  

Presumed admissibility of business records 

The Act introduces a presumption that business records will be admissible in civil proceedings as evidence of the truth of facts or facts asserted in such records, including records originating outside Ireland, where:

• direct oral evidence would be admissible in relation to the fact in the record
• the information was compiled in the ordinary course of a business
• the information was supplied by a person who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with (irrespective of whether the person compiled the information is identifiable)
• if the information is a reproduction of non-legible information in a legible form, and that reproduction occurred  in the course of the normal operation of the reproduction system concerned

In practice, this means that routine business records such as production records, QC records, delivery dockets, invoicing records, purchase orders, emails and other correspondence are likely to be admissible. However, documents falling outside the provisions of the Act will need to be proven in the usual manner.  
Business records may be admissible even if the person supplying them for the purposes of the litigation (e.g. a company secretary) was not the original author, provided the documents were compiled in the ordinary course of business. If necessary, an explanation of the information in the records will be admissible via oral or documentary evidence from a person who can explain the information.

Exceptions 

The Act identifies situations where the records will not be admissible, including where they are privileged or compiled in contemplation of criminal, civil or disciplinary investigations or proceedings (subject to specified exceptions).  

Notice of business records 

A party seeking to introduce business records as evidence in civil proceedings must first notify the other party of their intention. Other parties can object to the admissibility of all or part of such records by delivering a notice of objection.   

Admission, weight and credibilty of evidence

Even if the criteria for presuming business records admissible (as noted above) are met, a Court can refuse to admit such documents if, for example, it has concerns regarding the reliability and authenticity of the records. The Court can also consider all of the circumstances to determine how much weight or reliance should be placed on the records. 

The credibility of the source of the business records can also be challenged, including by any evidence of contradictory statements.  

Copies of business records admissible 

Where the original business records no longer exist, a party can produce copies if they are duly authenticated (including as to reliability) in a manner approved by the Court. 

For further information please contact Liam Kennedy, Partner, Dr Stephen King, Senior Associate, Eimear Digney, Solicitor or a member of the A&L Goodbody Litigation & Dispute Resolution team.

Date published: 1 September 2020

¹ See The Law Reform Commission's Report on Consolidation and Reform of Aspects of the Law of Evidence (2016).