Ulster Bank Limited (plaintiff) v Neil Crawford and Cathal Crawford (defendants).

Real Property - Judgment mortgage - Occupation of persons against whom judgment obtained incorrectly stated in affidavit to register judgment mortgage - Whether compliance with statutory requirements - Approach to be applied in interpretation of statute - Judgment Mortgages (Ireland) Act 1850, section 6.

The High Court (before Miss Justice Laffoy); judgment delivered 20 December 1999.

In considering whether there was compliance with the requirements of section 6 of the Judgment Mortgages (Ireland) Act 1850 in an affidavit to register a judgment mortgage which incorrectly stated the occupation of the persons against whom the judgment which was to be a charge on lands had been obtained, the correct approach was to consider whether the affidavit left any doubt as to the identity of those persons.

Miss Justice Laffoy so held in declaring sums due on foot of a judgment of the High Court of 1993, together with Courts Acts interest thereon from the date of judgment, to be well charged on the defendants' lands.

Patrick Treacy BL for the defendants; George Brady SC and Oonagh McCrann BL for the notice party.

Miss Justice Laffoy said that, by order dated 17 October 1998, the High Court (Mr Justice Murphy ) had declared an equitable mortgage by deposit of title deeds to be well charged on lands owned by the defendants, and had ordered the sale of the lands if the sums due on foot of the mortgage were not discharged within the specified time. In 1999, the parties had settled their differences when the plaintiff accepted the sum of £46,50 0 in full and final settlement of the defendants' liabilities to it. On the 8 July 1999, the plaintiff had issued a motion seeking an order discharged the order of 17 October 1994. The holders of two judgment mortgages on the property were put on notice of the motion, and one judgment mortgagee, Charles Kelly Limited (the notice party), was now seeking to take over carriage of the plaintiff's proceedings. This notice party had filed an affidavit with a view to establishing that it was entitled to a declaration that the sums secured by registration of the judgment mortgage were well charged on the lands.

The defendants had contested this on the basis that, in the affidavit to register the judgment mortgage, the title, trade or profession of each of the defendants was mistakenly given as "proprietor", rather than as "building contractor". Section 6 of the Judgments (Ireland) Act 1850 required that such an affidavit shall state, inter alia: "the name or title of the cause or matter, and the court in which such judgment . . . has been entered up . . . and the date of such judgment . . . and the usual or last known place of abode and the title, trade or profession of the plaintiff (if there be such) and of the defendant or person whose estate is intended to be affected by the registration, as hereafter mentioned, of such affidavit, and the amount of the debt . . . "

The defendants submitted that the court should follow a line of authority in which the courts have required the requirements of section 6 of the Act of 1850 to be strictly complied with: Dardis and Dunns Seeds Limited v Hickey (High Court, Mr Justice Kenny, 11 July 1974, unreported), Allied Irish Banks plc v Griffin [1992] 2 IR 70. The notice party submitted that this strict interpretation of the statutory requirements ran counter to the modern approach of giving the statute a purposive interpretation, and of not allowing technical flaws which do not mislead to invalidate the judgment mortgage: Irish Bank of Commerce Limited v O'Hara (High Court, 10 May 1989, unreported; Supreme Court, 7 April 1992), Wylie: Irish Land Law, (2nd edition, at paragraph 13.173).

Miss Justice Laffoy said that the issue in Irish Bank of Commerce Limited v O'Hara was whether the requirements of section 6 in relation to the description of lands the subject of the judgment mortgage were complied with and, in particular, whether the omission of the parish in which the lands were situate amounted to non-compliance with those requirements. In the High Court, Mr Justice Costello had approved of the judgment of the House of Lords in Thorp v Browne (1867) LR 2 HL 220, and ruled that the purpose of the requirement relating to the location of the lands was to identify with precision the location of the lands affected by the judgment mortgage and to enable persons subsequently dealing with the judgment debtor and his lands to be warned of its existence. If the particulars given in the affidavit achieved this purpose, there was nothing in the statute which would require the court to invalidate the transaction. Mr Justice Costello therefore ruled that the omission of the parish did not invalidate the mortgage.

On appeal to the Supreme Court, the then Chief Justice, Mr Justice Finlay, approved of the purposive approach applied by Mr Justice Costello, and of the approach of the House of Lords in Thorp v Browne saying that the ruling in that case, which related to the requirement to state the judgment mortgagor's place of abode, was of general application. Mr Justice Finlay had also considered two authorities which appeared to be of contrary effect, Murphy v McCormack [1930] IR 322 and In Re Flannery [1971] IR 10, and concluded that while greater care might have to be taken in any individual case to ensure that no possibility of mistake could occur by reason of any non-compliance with the strict terms of section 6 in identifying the lands that might be relevant, in questions as to the identification of the judgment debtor there were no reasons why a less strict approach might not in general apply, and he followed the decision of the Supreme Court in Credit Finance Limited v Grace.

Miss Justice Laffoy said that, while the observations of Mr Justice Finlay were obiter dicta, she must have regard to them, and the correct approach was to consider whether the affidavit in this case left any doubt whatever as to the identity of the persons against whom the judgment which was to be a charge upon the lands had been obtained, which was the test posited by the Lord Chancellor in Thorp v Browne. Miss Justice Laffoy said that it was clear from the affidavit that the judgment had been obtained against the defendants as the proprietors of the business which traded as Crawford Construction. The word "proprietor" was defined in The New Oxford Dictionary of English (OUP, 1998) as "owner of a business". It was clear that the point taken by the defendants was very much a technical one, and she made an order transferring carriage of the proceedings to Charles Kelly Limited, and granted a declaration that the sums due by the defendants to the plaintiff on foot of the judgment of the High Court in 1993 stood well charged on the interests of both defendants in the lands.

Solicitors: Moriarty & Co (Dublin) for the plaintiff; Smithwick & Co (Dublin) for the defendants; Charles B. W. Boyle & Co (Dublin) for the notice party.