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." 14 Rarely can so much nonsense have been crammed into such a short judgment, although admittedly it has been much followed. As to Re 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." 15 On the face of it, Allied Irish Banks pic v 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 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. 16 The plaintiff contended that Dunlaoghaire was not a town within the meaning of Yet in the result he overruled the objection. which the lands to which the Affidavit relates are situate".

the 1850 Act.

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 20 , where Naish LJ said that the Court "should 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 22 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." 23 not look upon these technical objections with any favour." 21

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." 17 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." 18 Finding that the omission, if any, could not mislead anyone Costello J found the Judgment Mortgage valid.

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