The Gazette 1993

GAZETTE

OCTOBER 1993

reconciled with Grace , preferred Grace. It was satisfied that in case either of the description of the lands, or of the debtor's identity or place of abode, a misdescription or omission would not be fatal unless it was likely to mislead. Where does this leave Allied Irish Banks pic v Griffin ? In O 'Hara the Supreme Court approved those authorities which state that "a commonsense" approach has to be taken to: (i) The description of the lands; (ii) The identity of the debtor; (iii) The debtor's place of abode;- and (by implication) disapproved the numerous authorities which hold that strict compliance is necessary in these matters. Either Griffin is wrong, or the debtor's "title, trade or profession" is in a separate position from the rest of section 6. In this folley ridden field, the absurdity of the second solution does not prove that it is wrong. But is there any evidence that the courts have ever treated the "title, trade or profession" clause separately? In Crosbie v Murphy, Lefroy CJ said:- Conclusion

facilitate indexing in the Registry of Deeds . . . the present case does not differ in principle from Thorp v Browne and Harris v O'Loghlen. The reasoning in those cases commends itself to commonsense and it should in my opinion be followed." 24 The Index of Lands in the Registry of Deeds was not kept up to date for many years 25 ; therefore the only purpose of describing the lands now is to identify them. Any description which identifies the lands with reasonable certainty is sufficient even if it is not wholly accurate. In O'Hara the defendant before the Supreme Court relied on Re Flannery 26 and Murphy and McCormack 21 . In Re Flannery Kenny J found a Judgment Mortgage affidavit to be invalid because a non-existent parish was given. He said:- "The provision in section 6 of the Act of 1850 that the Parish should be stated is to enable the Affidavit to be registered correctly in the Index of the Lands and in the Abstract Book so that those searching will not be misled. But if a Parish which does not exist is referred to in the Affidavit, it cannot be correctly registered and in my opinion is defective." 28 There are several problems here. Firstly as we have seen the Index of Lands was not kept up to date for many years; is section 6 therefore obsolete? Secondly the Supreme Court in Grace identifies the primary purpose of section 6 as being to identify the lands. Finally as we have seen Kenny J himself in Grace recognised that a misdescription of the lands is not always fatal. One must conclude that Flannery was wrongly decided. In Re Murphy and McCormack the Judgment Mortgage affidavit omitted the relevant Barony. The Supreme Court held this to be a fatal error, refusing to apply Thorp v Browne.

the Court overruled objections to the description of the "title, trade or profession"; and even in Crosbie v Murphy as we have seen, Compton J admitted that a purposive approach to this clause is possible. One must conclude that the "title, trade or profession" is in the same position as the rest of section 6: i.e. while many cases on the point insist on strict compliance with this section, these must yield to that line of authority, approved in O'Hara , which holds that no error which does not deceive is fatal. It was open to Denham J to follow the authorities cited. Nor could she fairly be expected to predict the outcome of the appeal in O'Hara. However one must regret this return to strict compliance. Since the "title, trade or profession" clause was not at issue in O 'Hara and was not referred to there, it is just possible to argue that this clause is not covered by that judgment. It is safe to predict that such arguments will be made, until the Supreme Court, which has tried so hard to restore commonsense to this topic, puts the matter to rest. 3. See Harris v O'Loghlen (1888) LR (Ir.) Vol. XXI11 61 at 81 per Lord Ashbourne L.C. 4. See Spaddacini v Treacy (1888) LR (Ir.) Vol XXI 553 at 559 per Porter M.R. 5. See in particular Thorp v Browne (1867) LR 2HL 220; Harris v O'Loghlen (1888) LR (Ir.) Vol XXI11 61; Credit Finance Ltd. v Grace Supreme Court 9 June, 1972 Unreported. 6. High Court 10 May, 1989 Unreported; Supreme Court 7 April, 1992 Unreported. 7. Allied Irish Banks pic v Griffin (1992) 2 IR 70; (1992) ILRM. 590. 8. (1992) 2 IR 70; (1992) ILRM 590. References 1. (1860) 11 Ir. Ch. Rep. 397 2. (1860) 11 Ir. Ch. Rep. 397 at 402.

"Everything upon the face of the Judgment must of necessity be inserted in the Affidavit." 29

In Murphy v Lacey, Porter MR stated:-

"The Statute was not complied with." 10

In Sexton v Valente 31 Judge Connolly said:-

"While the Court has jurisdiction to relieve in case of non-compliance with a Rule, it has no jurisdiction in the case of a Statutory requirement." 32 There is nothing in these judgments to show that the "title, trade or profession" clause is in a special position. Nor do we lack decision (notably Re Swanton 's Estate ) while

9. (1867) LR 2 HL 220. 10.(1858) 8 ICLR 301. 11.(1896) 31 ILTR42. 12.(1897) 31 ILTR 166. 13.(1858) 8 ICLR 301 at 311.

In O 'Hara the Supreme Court, recognising that this decision cannot be

(Continued on page 302)

299