The Gazette 1993

GAZETTE

OCTOBER 1993

quite sure that the description deceiv-

ed or misled no one; but that was not

the question. The Statute was not

complied with and he must so

decide."

Rarely can so much nonsense have

been crammed into such a short

judgment, although admittedly it has

been much followed. As to

Swanton 's Estate,

it is true that Ross J

stated that:

"When a man has any definite trade

or profession it is very easy to tell,

and to describe such a man as a

"gentleman" would be incorrect."

Yet in the result he overruled the

objection.

On the face of it,

Allied Irish Banks pic

Griffin

is an unexceptional decision.

The authorities relied on by the plaintiff

were distinguishable, while those relied

on by the defendant were directly in

point. Nonetheless, Denham J was

wrong.

Irish Bank of Commerce v O'Hara

The plaintiff in

O 'Hara

sought a Well

Charging Order over lands of the first

named defendant described in the

affidavit as "Ashurst, Military Road,

Killiney, Borough of Dunlaoghaire,

Barony of Rathdown and County of

Dublin." The only defence of substance

was non-compliance with section 6 of

the 1850 Act. So far as relevant, section

6 required that the affidavit state:-

"The County and Barony, or the

Town or County of a City, and

Parish, of the Town and Parish, in

which the lands to which the

Affidavit relates are situate".

In far too many cases the Court has

simply decided whether section 6

requires something to be done and

whether it has been done, and struck

down or upheld the affidavit

accordingly.

There is authority that omission or

misdescription of the relevant parish

will invalidate the Judgment Mortgage,

but only if the lands are in a town.

The

plaintiff contended that Dunlaoghaire

was not a town within the meaning of

the 1850 Act.

In far too many cases the court has

simply decided whether section 6

requires something to be done and

whether it has been done, and struck

down or upheld the affidavit

accordingly. From time to time

however, courts have considered the

purpose of section 6 and indicated that

the substantial compliance with that

purpose is enough. Costello J chose the

latter course. He also (it seems) went

beyond any previous court in holding:-

(i) That the Act nowhere states that

non compliance with section 6 by

itself makes the affidavit invalid;

(ii) That only a non-compliance which

defeats the purpose of the Act will

have this effect.

Costello J relied on

Thorp v Browne

where the debtor's abode was stated in

the Judgment Mortgage affidavit as

"formerly of Ballina Park in the County

of Wexford and now of the City of

Dublin".

The House of Lords held that this was

sufficient. Lord Chelmsford LC said:-

"We have to look to what the object

and intention of the

legislature were in requiring that

there should be these particulars

describing the Judgment debtor . . .

it was clearly for the purpose of dis-

tinguishing him from all other

persons."

Thorp v Browne

was a decision on the

debtor's place of abode; but Costello J

saw no reason not to apply the same

rule to the description of the land. He

said:-

"If the Judgment Mortgage affidavit

actually filed achieved the purpose

the legislature sought to achieve

then there is no reason why the

Court should construe the section as

requiring such compliance with its

provisions . . . if non-compliance

arises from a mere omission of a

statutory requirement this will not

automatically invalidate the

Judgment Mortgage."

Finding that the omission, if any, could

not mislead anyone Costello J found

the Judgment Mortgage valid.

There were two issues on appeal:-

(i) Should the affidavit have stated the

parish?;

(ii) Assuming it should have, did the

omission invalidate the affidavit?

The Supreme Court found for the

plaintiff on both issues. On the first, it

approved those authorities which state

that the Judgment Mortgage affidavit

is only required to state the relevant

parish if the lands are in a town. Since

there was no evidence that

Dunlaoghaire was a town in 1850,

there was no non-compliance with

section 6.

On the second issue, the Supreme Court

identified two lines of authority: one

which Denham J had relied on in

Griffin

holding that strict compliance

was necessary, the other holding that a

commonsense approach should be

taken. The court agreed with Costello J

that the principles laid down in

Thorp v

Browne

were applicable. The Court

found the same principle in

Re Smith

and Ross

and

Re Fitzgerald",

both of

which were approved by the Court of

Appeal in

Harris v O'Loghlen

where

Naish LJ said that the Court "should

not look upon these technical

objections with any favour."

Most crucially, the Supreme Court in

O'Hara

noted that it had quite recently

approved this line of authority. In

Credit Finance Ltd. v Grace

the

defendant objected that the description

of the lands in the Judgment Mortgage

affidavit was ambiguous. Kenny J in

the High Court overruled this objection,

stating:-

"A Judgment Mortgage affidavit is

not defective, because of errors in the

description of the lands unless these

are likely to mislead."

The Supreme Court agreed. O'Dalaigh

CJ said:-

"Turning to the present case the

specification in the Affidavit of the

County and Barony, Town or

County of City or Parish or of Town

and Parish, serves primarily to

identify the lands with greater

certainty and secondarily to