A. D. M. Mersey PLC v Bergin & anor [2020] IEHC 3 (14 January 2020)

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JUDGMENT of Mr. Justice Allen delivered on the 14th day of January, 2020

1. This case raises a novel question of law as to the effect, since the enactment of the Land

and Conveyancing Law Reform Act, 2009, of the registration of a judgment mortgage

against the interest of a joint tenant of land, where one of the joint tenants is a judgment

2. On 16th July, 2010 the plaintiff, by its then name of ADM Londis plc, marked judgment

against the defendants, Mr. James Bergin and Mrs. Nicola Bergin, for €604,029.06 and

3. On 9th September, 2010 that judgment was registered as a burden on Folio 7642, County

Kilkenny, against the interest of James Bergin in that property. James Bergin was at that

time, and since 27th January, 1992 had been, registered as the owner of the folio, jointly

4. On 8th May, 2013 Kieran Bergin and James Bergin executed a form of transfer which

recited their desire to sever their joint tenancy and transferred the lands to themselves as

tenants in common in equal shares. On 3rd May, 2017 Kieran Bergin and James Bergin

5. On 29th April, 2013, shortly before the severance or purported severance of the joint

tenancy, Kieran Bergin had executed a codicil to his will, by which he bequeathed his

interest in the land in Folio 7642, County Kilkenny, to his granddaughter, Eimear Bergin,

and his grandson Ciaran Bergin. The inference is irresistible, and the fact was confirmed

by an affidavit of Mr. Kieran Bergin’s solicitor, that the object of the transfer and the

codicil was to protect his interest in the lands from his son’s creditors. Mr. Kieran Bergin

6. By special summons issued on 15th July, 2015 the plaintiff applied for a declaration that

the judgment mortgage stood well charged on the interest of the defendants in the

property, and for orders under ss. 31 and 117 of the Land and Conveyancing Law Reform

Act, 2009 for partition of the lands or for a sale and distribution of the proceeds, and for

7. The summons named James Bergin and Nicola Bergin as defendants. It was slightly

surprising that Mrs. Bergin was named as a defendant because she had no apparent

interest either in the lands the subject of the present application or in the lands comprised

in another folio in the sole name of Mr. James Bergin, on which the judgment mortgage

had also been registered. Since the substantive relief claimed was an order for the

partition or sale of lands of which Mr. Kieran Bergin was registered as a co-owner, it was,

8. By order of the High Court made on 20th June, 2016 the judgment mortgage was

declared to be well charged on the defendants’ (sic.) interest in the lands and the claim

10. The special summons came back into the list in March 2019, on notice to Mr. James

Bergin and Mrs. Nicola Bergin, but not to the legal personal representatives of Mr. Kieran

Bergin. By then, the plaintiff’s solicitors had established that Mr. Kieran Bergin had died,

and they had established by an up-to-date search that the land was registered in the

names of James Bergin and Kieran Bergin as tenants in common. The plaintiff’s position

was that whatever might have been done after the judgment mortgage was registered

was irrelevant since, it was said, the effect of survivorship was that Mr. James Bergin was

solely entitled to the lands and, it was said, all that was needed was an order for sale.

11. On 1st July, 2019 the probate judge gave liberty to Ms. Eimear Bergin and Mr. Ciaran

Bergin to apply for a grant of letters of administration in their grandfather’s estate,

limited for the purpose of defending these proceedings, and thereafter Eimear Bergin and

Ciaran Bergin applied to be joined as defendants. Remarkably, the plaintiff objected and

ultimately Eimear Bergin and Ciaran Bergin were joined as notice parties.

12. The argument advanced on behalf of the plaintiff is based on nice questions of law, to

which I shall come, but the substantive issue is whether the proceeds of sale of the lands

– if they are to be sold – should be paid in their entirety to the plaintiff or should be

divided between the plaintiff and the estate of Mr. Kieran Bergin. In a busy Monday

morning motion list on 18th October, 2019, long after the summons had been listed for

further consideration and very shortly before the hearing date, an order was made joining

Ms. Eimear Bergin and Mr. Ciaran Bergin as notice parties. It seems to me that from the

outset Mr. Kieran Bergin was a necessary and proper party to an action for the partition

and sale of lands of which he was a co-owner, and his legal personal representatives are

persons whose presence is necessary in order to allow the court to effectually adjudicate

upon the issue raised by the plaintiff and formally ought to be joined as co-defendants.

The notice parties’ motion may formally be spent but the court is entitled under O. 15, r.

13 at any time of its own motion to join them as defendants and will do so.

13. The issue identified in the written submission filed on behalf of the plaintiff is whether

joint tenants of registered land can sever their joint tenancy after the registration of a

judgment mortgage in a manner which is effective against the judgment mortgagee.

14. Intriguingly, Mr. Buttanshaw, having so framed the issue, submits that it makes no

difference whether they can or cannot sever their joint tenancy. If the severance of a

joint tenancy after registration of a judgment mortgage against the interest of one of the

joint tenants is not wholly ineffective against the judgment mortgagee, he argues, it is

effective to confer on the judgment mortgagee security over the interest of each of the

15. The argument is based on three propositions. The first is that as joint tenants James

Bergin and his father each owned the entire of the lands rather than either a defined or

identifiable portion, or a defined fraction. Reference is made to the definition of a joint

tenancy in Megarry & Wade The Law of Real Property (9th Edition) at para. 12-002 and

“A gift of lands to two or more persons in joint tenancy is such a gift as imparts to

them, with respect to all other persons than themselves, the properties of one

single owner. Although as between themselves joint tenants have separate rights

as against everyone else they are in the position of a single owner. The intimate

nature of joint tenancy is shown by its two principal features, the right of

It is often said therefore that each joint tenant holds nothing and yet holds the

16. I accept the short passage relied on as a correct statement of the law. As to the

submission on behalf of the plaintiff, I think that it is more correct to say that, as against

the world, the two joint tenants both, rather than each, own the entire of the lands.

17. The second proposition is that after an effective severance of a joint tenancy, as between

the two joint tenants, each co-owner owns an equal undivided moiety of the property.

That is correct. “In other words”, it is said, “following severance each joint tenant no

longer owns the whole of the common property but only a defined fraction thereof”. With

respect, I do not believe that the suggested alternative formulation is truly an alternative

formulation, or that it is correct. It is certainly correct to say that each of the two

tenants in common, are as between themselves, entitled to an undivided moiety but

18. As Prof. Wylie explains in the 5th edition of his work on Irish Land Law at para. 8.03: -

“In the case of both a joint tenancy and a tenancy in common, the land held by the

persons concerned is held by them concurrently, so that as far as third parties are

concerned the co-owners of the land must be treated a single unit for the purpose

19. Mr. Buttanshaw’s third proposition is that since it is the case that a co-owner owns the

whole of the property before severance and only half after, it necessarily follows that the

act of severance is an alienation by each to the other of an equal undivided moiety. It is

here, in my view, that the argument breaks down: or, perhaps, fails to come together.

The first proposition looks at a co-ownership from the point of view of everyone else, but

the second from the point of view of the co-owners. As is clear from the short passage

cited from Megarry & Wade, joint tenants, between themselves have separate rights so

that the effect of severance is to convert the joint tenancy into a tenancy in common,

20. It seems to me that the third proposition on which the plaintiff’s argument is based fails

to recognise the difference between those two points of view. Moreover, the proposition

that severance involves alienation to the other joint tenant fails to take account of the

fact that until 2009 a joint tenancy could be severed unilaterally by the acquisition by one

of the joint tenants of a further interest in the property or by the alienation by the joint

tenant of his interest to a third party, or of the fact that a joint tenancy is severed by the

simultaneous death of the joint tenants, or by the bankruptcy of one of the joint tenants .

While the effect of severance is that each of the co-owners will have a different interest in

the land (as against the world as well as inter se), it does not follow that each or either

has obtained anything at all, still less his entire interest in the land, from the other. After

as well as before the severance, the co-owners will hold their interest from the original

21. It is submitted on behalf of the plaintiff that the registration of a judgment mortgage

“captures the whole of the property which is held on a joint tenancy”. I cannot agree.

All that it can capture is the judgment debtor’s interest in the property. It is well and

long settled that a judgment mortgage is a process of execution. See for example Re

22. Prior to the operative date of the Land and Conveyancing Law Reform Act, 2009, a

judgment mortgage against unregistered land, because it took effect as a mortgage,

severed a joint tenancy but a judgment mortgage against registered land, because it

operated as a charge, did not. This had the effect that a judgment mortgage registered

against the interest of a joint tenant in registered land was extinguished on the death of

the judgment debtor: Mahon v. Lawlor [2011] 1 IR 311. And that a judgment

mortgagee of registered land did not have a sufficient interest in the land to give him

locus standi to maintain an action for partition: Irwin v. Deasy [2011] 2 IR 752.

23. It made no sense that the rights of judgment mortgagees and joint tenants, or surviving

joint tenants, should depend upon the accident as to whether the title to the property was

registered or unregistered, and the two were brought into alignment by the Act of 2009,

since when a judgment mortgage will operate as a charge against both unregistered and

registered land, and a judgment mortgagee (although he is not) is treated as a “person

having an estate or interest in land” so as to be amongst those who may apply for an

24. Section 30 of the Act of 2009 substantially restricts the circumstances in which a joint

(a) conveyance, or contract for a conveyance, of land held in a joint tenancy, or

by a joint tenant without the consent referred to in subsection (2) is void both at

law and in equity unless such consent is dispensed with under section 31(2)(e).

(2) In subsection (1) ‘consent’ means the prior consent in writing of the other joint

tenant or, where there are more than one other, all the other joint tenants.

(3) From the commencement of this Part, registration of a judgment mortgage against

the estate or interest in land of a joint tenant does not sever the joint tenancy and

if the joint tenancy remains unsevered, the judgment mortgage is extinguished

(4) Nothing in this section affects the jurisdiction of the court to find that all the joint

tenants by mutual agreement or by their conduct have severed the joint tenancy in

25. Prof. Wylie at paras 8.29 and 8.30 traces the legislative history of s. 30 of the Act of 2009

which explains the uneasy concept of unilateral severance by one joint tenant with the

prior written consent of all the other joint tenants, save where the joint tenant wishing to

sever has applied for and obtained an order dispensing with the consent that has been

unreasonably withheld. Significantly, for present purposes, the scheme of the legislation

appears to me to be to limit the exercise of what theretofore had been a right, rather

than to abrogate the right altogether. The unilateral severance does not strictly speaking

require the co-operation of the other joint tenants but merely their consent. The other

joint tenants must nowadays agree to it, but the severance is still effected by the act of

26. I pause here to deal with one element of the argument made by Mr. Kennedy on behalf of

the estate of Mr. Kieran Bergin, which is that the Oireachtas could not have intended that

if the non-debtor dies before the debtor, that the debtor will become entitled to the whole

of the property by survivorship and that consequently the judgment mortgage will attach

to the whole of the property and not just his undivided share. It is submitted that if the

legislation envisaged a creditor receiving what is said to be a a windfall of this nature, it

would have expressly provided for this. The immediate policy behind s. 30(3) may very

well have been to align the position of a surviving non-debtor joint tenant of unregistered

land with that of a surviving non-debtor joint tenant of registered land but it seems to me

that that alignment necessarily aligned the position of surviving debtor joint tenants. On

the death of the non-debtor joint tenant the debtor takes the entire interest in the land by

survivorship, and the judgment mortgage is not extinguished. Logically, the judgment

mortgage remains in force against the enlarged interest of the judgment mortgagee. In

consequence, as Mr. Buttanshaw submits, if nothing is done after a judgment mortgage

has been registered against the interest of one of the joint tenants, the judgment

mortgagee may come to have security over the entire of the lands, or no security at all,

depending on which of the joint tenants dies first. It was against that eventuality that

the plaintiff might come to have security against the whole of the lands that Mr. Kieran

Bergin sought to make provision by the deed he executed on 8th May, 2013.

27. Section 30, sub-s. 3, expressly contemplates that a joint tenancy may be severed after

the registration of a joint mortgage and before the death of judgment debtor. Clearly

this could be the effect of an order under s. 31 or s. 117, including an order under s.

31(2)(e) dispensing with the consent of one or more joint tenants, where such consent

has been unreasonably withheld: but the issue raised in this case is whether the joint

tenancy may be severed by what has been referred to in argument as the “innocent” joint

tenant but what the old cases call the “companion” joint tenant, with the consent of the

28. It is acknowledged on behalf of the plaintiff that during the life of the judgment debtor the

companion joint tenant as well as the judgment mortgagee may apply to court for an

order under section 31. Unless and until such an order is sought and obtained, it is

29. In this case, the game might have commenced on 16th July, 2010 when the plaintiff

recovered an enforceable judgment and its right of action accrued. The potential players

were the judgment debtor, who could not win; an octogenarian retired farmer and

shopkeeper of limited resources whose son was in serious financial difficulties; and a

public limited company which had twelve years to cast the dice which might roll for many

years before finally coming to rest. Mr. Kieran Bergin did not want to play. Neither did

the plaintiff, for it applied to the court on 15th July, 2015 for an order for sale of the

lands. If Mr. Bergin, whose interest in the land was potentially at stake, had been

named as a defendant and had been before the court on 20th June, 2016 when the well

charging order was made, the plaintiff’s claim for an order for sale and division of the

30. In principle, the registration of the judgment mortgage was a process of execution

against the interest of Mr. James Bergin in the lands and did not affect the interest of Mr.

Kieran Bergin. The effect of s. 30(3) was that Mr. Kieran Bergin’s share was on the

hazard unless and until the joint tenancy was severed, but if the plaintiff is correct, the

only means by which it could have been severed was a court order for the sale of the

31. It seems to me that s. 30(4) clearly contemplates severance otherwise than by an order

for sale: specifically by the unilateral act of one of the joint tenants, subject to the prior

consent in writing of the other or others, unless dispensed with by court order.

Moreover, s. 30(4) is specifically directed to cases in which a judgment mortgage has

been registered against the interest of one of the joint tenants, but not the others. The

only consent requires is that of the other co-owners, and not the judgment mortgagee.

In my opinion, the proposition that the only means by which Mr. Kieran Bergin could have

avoided the risk that Mr. James Bergin would become entitled to his share was to obtain

an order for sale and division is inconsistent with the express power in s. 31(1)(e) to

make an order dispensing with consent to severance without making an order for sale. It

does not make sense to me to contemplate that the availability to an innocent or

companion joint tenant of the option to sever would depend upon the unreasonable

32. In support of his third proposition, Mr. Buttanshaw relies on Lord Abergavenny’s case

(1604) Pasch. 5 Jacobi, which was referred to by Finnegan J. in his judgment in Mahon v.

Lawlor [2011] 1 IR 311. That was a case in which one of two joint tenants, against

whom judgment had been obtained, released to her companion before execution. On the

later death of the debtor, the survivor was found not to take discharged of execution

because she had taken by the release and not by survivorship, which had been taken

33. It is submitted that the effect of the decision in Lord Abergavenny’s case is that a

judgment debtor joint tenant cannot by his own act put the interest he or she held in the

land beyond the reach of the judgment creditor. I agree. I do not, however, accept that

the effect of the deed of 8th May, 2013 was a release by Mr. Jim Bergin of an equal

undivided moiety of the interest which he held. Nor do I accept that the object or effect

of that deed was to put the interest which Mr. Jim Bergin had in the lands beyond the

reach of his creditors. Rather the common intention of the owners was to put the interest

of Mr. Kieran Bergin beyond the reach of the plaintiff. I can see nothing whatsoever

34. The deed of 8th May, 2013 was in form a transfer from Kieran Bergin and James Bergin,

as joint tenants, to themselves as tenants in common but the declared purpose of the

instrument was to effect a severance of their joint tenancy and the instrument has been

referred to in the defendants’ written submissions and in argument as a deed of

severance. The substance of the transaction was not that either divested himself of

anything, or transferred anything to the other, but that the joint tenancy was converted

to a tenancy in common. Before and after the transaction, the interest of Mr. James

Bergin was subject to the judgment mortgage in favour of the plaintiff, but the interest of

Mr. Kieran Bergin was not. Nothing passed from Mr. James Bergin to Mr. Kieran Bergin to

35. The submissions on behalf of the defendants are more straightforward and focus on the

36. As a matter if law, it is said, a judgment mortgage is a process of execution. Reference

is made to Containercare v. Wycherley [1982] I.R. 143 and Goodbody Pensioneer

37. The judgment mortgage attaches to the interest of the judgment debtor at the time of

registration. It does not attach to future or contingent interests. Reference is made to

Re: Rae’s Estate (1877) L.R. Ir. 174, Tempany v. Hynes [1976] I.R. 101, and Goodbody

Pensioneer Trustees v. Hevac [2019] IEHC 114. I accept the submission as a correct

statement of law, but I disagree with the premise of the submission which is that the right

or prospect of survivorship of a joint tenant is a future or contingent interest in land.

Rather, as I understand the law, the possibility of survivorship is an incident of the joint

38. Mr. Dermot Cahill, for Mr. James Bergin, and Mr. Kennedy. for the interests of Mr. Kieran

Bergin, submit that it is clearly established that joint tenants may agree to hold as

tenants in common and that effect will be given to such a contract. So it is.

39. Section 30(4) of the Act of 2009 expressly preserves the long established jurisdiction of

the court to find that all the joint tenants by mutual agreement or by their conduct have

“… Apart from [severance by a contract to alienate] there is no reason why the joint

tenants should not enter into a contract that thenceforward they should hold as

tenants in common, and equity will give effect to such a contract. Indeed, the joint

tenants may not even formalise their agreement to that extent. There is ample

authority in Ireland to the effect that equity will infer such an agreement from the

joint tenants’ conduct, eg, where they seem to have treated their interests in the

property as severed over a substantial period of time. This equitable jurisdiction

to find that a severance based on mutual agreement or conduct of all the joint

tenants was expressly saved by s. 30(4) of the Land and Conveyancing Law Reform

41. Mr. Cahill, leaving nothing to chance, went back to the authorities relied on by Wylie, in

particular Williams v. Hensman (1861) 1 J & H 546, 70 E.R. 862, in which Page-Wood V-C

“A joint tenancy may be severed in three ways: in the first place, an act of any one

of the persons interested operating upon his share may create a severance as to

that share. The right of each joint-tenant is a right of survivorship only in the event

of no severance having taken place of the share which is claimed under the jus

accrescendi. Each one is at liberty to dispose of his own interest in such manner

as to sever it from the joint fund – losing, of course, at the same time, his own

right of survivorship. Secondly, a joint-tenancy may be severed by mutual

agreement. And, in the third place, there may be a severance by any course of

dealing sufficient to intimate that the interests of all were mutually treated as

42. In this case, it is said, Mr. Kieran Bergin and Mr. James Bergin agreed to hold as tenants

in common and executed a deed accordingly. So they did. That being so, it seems to

me that any issue as to the effect of the deed in law evaporates and the issue becomes

whether there was any impediment to Mr. James Bergin consenting to the severance in

43. It is accepted by Mr. Buttanshaw that the effect of the registration of the judgment

mortgage was to charge the interest of Mr. James Bergin, only, in the land. The interest

of Mr. Kieran Bergin in the lands was unaffected, as were his rights attached to that

interest: one of which was the right, circumscribed as it was, to unilaterally sever the

joint tenancy, another of which was to apply to the court for an order under s. 31, and yet

another of which was to agree a severance. If Mr. Kieran Bergin, at the age he was,

wanted to sever the joint tenancy with a view to his interest in the lands passing to his

grandchildren rather than his son’s creditors, that, it seems to me, was perfectly

reasonable. If Mr. James Bergin has withheld his consent, his father might have applied

to court for an order dispensing with that consent and I cannot think of any reason why

such an order, if required, would not have been made. If the judgment mortgagee of Mr.

James Bergin’s interest would have been entitled to be heard on any such application

(and I do not say that it would) I cannot think that the plaintiff would have been heard to

say that it wanted to lock down Mr. Kieran Bergin’s interest in an unwilling game of

survivorship roulette. The difficulty in this case, however, would have been that Mr.

Kieran Bergin could not have invoked his right to apply for an order dispensing with

consent because it was forthcoming. If Mr. Kieran Bergin had applied to court for an

order for the sale of the lands and division of the proceeds, that would have matched

44. In my view, there was no impediment in law or in equity to the Messrs. Bergin agreeing

that thenceforth they would own the lands as tenants in common rather than as joint

tenants. This, as a matter of law, changed the nature of Mr. James Bergin’s interest in

the lands, but he did not divest himself of anything or pass anything to Mr. Kieran Bergin.

45. I find that Mr. Kieran Bergin and Mr. James Bergin by the deed they executed on 8th May,

46. It will have been noted that there was a long delay in registering the transfer. Mr. David

Doyle, solicitor, who acted for Mr. Kieran Bergin at the time of execution of the deed has

confirmed that it was executed on the date for which it is dated and that the reason for

the delay in registration was that he was not in funds for the necessary outlays.

Whatever the actuarial prospects of survivorship may have been, the effect of the deed

was to crystallise the rights of the plaintiff as well as Mr. Kieran Bergin. Counsel are

agreed that the fact that the deed was executed before, but registered after, the well

charging order was made makes no difference. The issue is whether there was any

impediment to the severing of the joint tenancy by agreement at any time between the

registration of the judgment mortgage and the death of whichever of the co-owners who

might first die or the making of an order for sale under section 31. In my view there was

47. There will be an order pursuant to O. 15, r. 13 of the Rules of the Superior Courts joining

Eimear Bergin and Ciaran Bergin, as legal personal representatives of Kieran Bergin, as

48. The judgment mortgage registered by the plaintiff on 9th September, 2010 against the

interest of the first defendant in the lands in Folio 7642, County Kilkenny, did not affect

the interest of Mr. Kieran Bergin, who was at that time a joint tenant.

49. The judgment mortgage did not attach to the lands, but only to the judgment mortgagor’s

interest in the lands: which was an undivided share as joint tenant with his father.

50. The judgment mortgage did not sever the joint tenancy but neither did it affect the right

of Mr. Kieran Bergin to sever the joint tenancy, or the right of Mr. James Bergin to

consent to such severance or to agree to severance. Nor, since it took effect as a

charge, did the judgment mortgage affect Mr. James Bergin’s ability to deal with his

51. The deed of 8th May, 2013 was effective to sever the joint tenancy.

52. The effect of severing a joint tenancy, in law and in equity, is not to convey or transfer

the interest, or any part of the interest, of either co-owner to the other but to convert the

undivided share of each joint tenant into an undivided moiety in the lands.

53. The right, or prospect, or possibility, of survivorship is not a future or contingent interest

54. Before severance, the plaintiff’s judgment mortgage was attached to the undivided share

of Mr. James Bergin. After severance, it was attached to his undivided moiety and it is to

55. Folio 7642, County Kilkenny, correctly shows each of Mr. Kieran Bergin and Mr. James

Bergin as the owners as tenants in common of one undivided half share, and that the

interest of James Bergin is subject to a judgment mortgage in favour of the plaintiff.

Result: Joint tenancy may be severed by registration of judgment mortgage

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