The Civil and Criminal Law (Miscellaneous Provisions) Act 2020 provides that business records may be offered in evidence in civil proceedings as an exception to the rule against hearsay. It is based on the recommendations of the Law Reform Commission in its Report on the Consolidation and Reform of Aspects of the Law of Evidence. A similar provision was made for the admissibility of business records in criminal proceedings in the Criminal Evidence Act 1992.
Business records are widely defined. Businesses include any trade profession or other occupation whether or not carried on for profit within or outside the State. It also includes the performance of functions of public authorities funded by the Oireachtas, local authority European Union or international organisations. Registered charities are also deemed businesses for this purpose.
A document is widely defined to include its ordinary meaning as well as maps, plans, graphs, drawings and photographs. It includes the reproduction in a permanent legible form by a computer or other means of information in a non-legible form.
Where under the above provisions information in business records in a document form is admissible in civil proceedings, that information may be given whether or not the document is still in existence by producing a copy of the material part authenticated in such way as the court approves including in relation to its reliability.
For this purpose of does not matter how many copies of copies there have been and how many removes there are between the copy and the original. This includes transmission and reproduction by electronic means.
The exception for documentary business records applies to business records and documents originating outside the State. This is the case even though persons who act on behalf of the business may not be compelled to give evidence in the State because there outside the State.
The rules also apply to records of a business which has ceased to exist. None of the rules affect any other rules by which evidence is otherwise admissible.
The basic principle is that subject to the provisions of the legislation and conditions applicable, any record in documentary form compiled in the ordinary course of business is presumed to be admissible as evidence of the the facts asserted in the document.
The relevant conditions are important and they are as follows. The facts concerned must be that which might be the subject of direct oral evidence. Thus it must be evidence which is otherwise admissible. The document must be compiled in the ordinary course of business and be supplied by a person who may reasonably be supposed to have had personal knowledge of the matters concerned. That person need not be identifible.
That person need not be the person who compiled the information. The information may be supplied directly or indirectly but, if it was supplied indirectly, only if each person (whether or not he or she is identifiable) through whom it was supplied received it in the ordinary course of a business.
Non-legible information is which is reproduced in permanent legible form is admissible on the same terms provided that it is reproduced in the course of the normal operation of the reproduction system concern.
The information may be supplied directly or indirectly. If the supplied indirectly only each person (whether or not identifiable to which it is supplied must have received it in the ordinary course of the business.
There are exceptions to this general principle by which business documents are admissible. It does not apply to information was privileged from disclosure in civil proceedings or criminal proceedings.See the sections on privilege.
Information supplied by a person who would not be compellable to give evidence is by the person who is offering it (e.g. a spouse) is excluded.
Information compiled for the purpose of or in contemplation of a criminal investigation or statutory investigation or enquiry disciplinary proceedings or civil or criminal proceedings are excepted from the above provisions allowing for admissibility. However, this is exception does not apply (so the document are potentially allowed above) where
- information was contained in a document compiled in the presence of a district judge and supplied on oath by a person in respect of whom an offence was alleged to have been committed and who is ordinarily resident outside the State,
- where the provisions dealing with drepositions in the presence of the judge and the accuse cannot or are impractical to invoke o
- the person in respect of whom the offence is alleged to have been committed has died or is outside State and it is not reasonably practicable to secure their attendance at the proceedings concerned
Exclusions from Exceptions
The documents containing the following information are also excluded from the exception and thereby potentially admissible.
- a map, plan, drawing or photograph (including any explanatory material in or accompanying the document concerned),
- a record of a direction given by a member of the Garda Síochána pursuant to any enactment,
- a record of the receipt, handling, transmission or storage of anything by Forensic Science Ireland in connection with the performance of its functions to examine and analyse things or samples of things for the purposes of criminal investigations or proceedings or both,
- a record of the receipt, handling, transmission, examination or analysis of anything by a registered medical practitioner of an examination of a living or dead person on acting on behalf of any party to the proceedings, or
- a record by a registered medical practitioner of an examination of a living or dead person.
Where information is admissible under this provision but is in terms that are not intelligible to the average person without explanation an explanation of the information is also admissible in evidence, if given orally by a competent person or contained in a document which purports to be signed by such person.
Information in a document may not be admitted without the consent of court in a civil trial unless the following conditions have been complied with
- a copy of the document must be served on the other party or parties.
- Alternatively, not later than 21 days before the commencement of the trial notice of intention to give the information in evidence together with a copy of the document is served on behalf of the party who proposes to give it, on each of the other parties.
A person who is served with a copy of the evidence or notice may not object to the admissibility in evidence of the information concerned unless not later than seven days before the commencement of the trial, notice of objecting to the admissibility is served. Service of the notice and objection may be delivered to a solicitor acting. It may be address person at the last usual residence place of business by prepaid registered post that address.
There is an overriding provision in relation to the admissibility of information in business documents which may be admitted under the provisions and procedure above. Even if it is potentially admissible above, the court may if it is of the opinion that the it is in the interests of justice that it not be admitted may exclude the whole or part of the evidence.
Factors and Weight
In considering whether in the interests of justice all or any part of such information ought not to be admitted in evidence the court shall have regard to all the circumstances, including—
- whether or not, having regard to the contents and source of the information and the circumstances in which it was compiled, it is a reasonable inference that theinformation is reliable,
- whether or not, having regard to the nature and source of the document containing the information and to any other circumstances that appear to the court to be relevant, it is a reasonable inference that the document is authentic, and
- any risk, having regard in particular to whether it is likely to be possible to controvert the information where the person who supplied it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to any other party to the civil proceedings or, if there is more than one, to any of them.
In estimating the weight, if any, to be attached to information given in evidence by virtue of these provision , regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.
Where information is given in evidence under the above provisions then evidence that would have been admissible if the person who supplied the information had been called as a witness relevant to the credibility of the witness, may be admitted.
With the leave (consent) of the court evidence may be given on any matter which if that person was called as a witness could have been put to him in cross examination relating to his credibility as a witness but not evidence that could not have been put in cross examination. Evidence which tends to prove that person whether before or supplying the information made a statement (oral or not) inconsistent with it shall be admissible the purpose of showing persons contradicted himself.