The Gazette 1993

GAZETTE

OCTOBER 1993

Judgment Mortgages - A False Dawn i •

by Christopher Doyle*

Court to take the purposive view of section 6, citing Thorp v Browne 9 and the High Court judgment in Irish Bank of Commerce v O'Hara. He pointed out that none of the authorities which has held Judgment Mortgages void for misdescription had examined the purpose of section 6. Thorp v Browne held that any description of the debtor's place of abode which identified the debtor beyond doubt, was sufficient. Why should a stricter test be applied to the "title, trade or profession"? Denham J in finding for the defendant did not answer this question. Irish Bank of Commerce v O 'Hara was distinguished on the grounds that it dealt with a description of the land; Thorp v Browne was not considered. The Judge relied on Crosbie v Murphy 10 , Murphy v Lacey u and Re: Swanton 's Estate 12 . In Crosbie v Murphy, the description of the defendant, who was a hotelier, as a widow, was found to be a fatal defect. Only one passage (from the Judgment of Compton J) is worth quoting:- "It is most material that the designation of the party against whom the Judgment Mortgage is to be obtained should be stated with precision and accuracy." 13 Undoubtedly Crosbie v Murphy is authority for the defendant in Griffin. The only question is whether Denham J should have followed it. The point at issue in Murphy v Lacey was whether the description of the defendants as "farmers" invalidated the Mortgage; they had been farmers but at the material time were farm labourers. Porter MR said:- "It was clear from the affidavits that the plaintiffs were farm labourers . . . and could not be correctly described as farmers, and consequently that the affidavit registering the Judgment as a Mortgage was defective . . . he felt

The baffling language of section 6 of the Judgment Mortgage Act, 1950 has caused much confusion over the years, writes Christopher Doyle, and clearly the battle over s.6 has plenty of life in i t David Lynch, Judge of the Irish Bankruptcy Court 1859/1867 and of the Landed Estates Court 1867/1872, is still remembered for his refusal to hear technical objections in Judgment Mortgage suits. His leading decision, Re Smith and Ross [ was given when the Judgment Mortgage (Ireland) Act 1850 was a bare decade old; yet already the baffling language of section 6 of the Act had caused such confusion that as Lynch J noted, almpst every Judgment Mortgage that came before him was attacked for a technical flaw. The Judge made it clear that no technical objections would succeed in his Court; for as he said:- Lynch J's robust approach was not universally admired by his colleagues: opinions ranged from "the embodiment of common sense" 3 to "the champion of doubtful registration" 4 . These conflicting views on Lynch J reflect a deeper conflict on the effect of non- compliance with section 6 which has lasted down to the present day. Conventional wisdom is that any non compliance with section 6 automatically makes the Judgment Mortgage void; but quite an impressive list of Judges have echoed Lynch J's vigorous disagreement. 5 Finally Costello J in Irish Bank of Commerce v O 'Hara reduced the law to a single rational principle, affirmed on appeal by the Supreme Court 6 : since the 1850 Act nowhere states that non- compliance with section 6 will make the " Admit once this class of criticism, and where can you stop?" 2

Christopher Doyle

mortgage void, it should do so only if non-compliance defeats the purpose of the Act i.e. if it makes it impossible to identify the lands or parties affected. For a too brief interval, it seemed that the law of Judgment Mortgages had been put on a workable basis. Alas, O'Hara was a false dawn. Four months before the Supreme Court delivered judgment, the High Court had struck down another Judgment Mortgage affidavit on a technical point. 7 This decision is not under appeal, so it is unlikely that the Supreme Court will deal with the particular point for some time. Clearly the battle over section 6 still has plenty of life in it.

For a too brief interval, it seemed that the law of Judgment Mortgages had been put on a workable basis.

Allied Irish Banks pic v Griffin

The plaintiff in Allied Irish Bank pic v Griffin 8 sought a Well Charging Order over the Defendant's lands. The only point at issue was the description in the Judgment Mortgage affidavit of the "title, trade or profession" of the defendant, who was a farmer, as a "widow". Plaintiffs counsel urged the

I

i

297