Mr. Edmund Honohan:

The nature of evidence is a matter for the courts. They decide what evidence they will accept as probative of a fact. The Oireachtas passed the miscellaneous provisions legislation in 2020 during Covid - the Covid Act - which allowed for hearsay evidence. This measure was pressed for by the banking community. It said it could not proceed with cases because of Covid. What the banks actually meant was that they could not get the documents. The courts are now empowered to hear hearsay evidence about the mortgage as a fact, without necessarily having to see the documents. This is where we are at. In other words, is the evidence before the court probative of the existence of a mortgage? If so, then there is probably no need to see the mortgage deed because someone has sworn that there was a mortage. That is okay; that is evidence now.

The other evidence that is acceptable is the person is the owner as registered on the register of titles. The register is considered to be evidence as well. It is possible to progress cases of this sort on a paperwork basis only. Imagine the difficulty from a lay litigant's point of view. The person is handed a bundle of papers and told that these are the proofs. The lay litigant has to do the best they can with that. On the day in court, the person protests about price or the circumstances in which he engaged in the mortgage in the first place, or about difficulties in getting a solicitor and all sorts of stuff like that. However, the lay litigant is not really equipped to actually plumb the depths of the paperwork that has been handed to him. Neither is the judge who gets a bundle of papers and asks the defendant if he is expected to read them. The defendant makes such and such a point but he does not really know what he is saying. The judge then says that there is an affidavit which confirms everything and proceeds.