S38 Walsh -v- Jones Lang Lasalle Ltd [2017] IESC 38 (01 June 2017)

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Cite as: [2017] IESC 38

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Judgment
Title:
Walsh -v- Jones Lang Lasalle Ltd
Neutral Citation:
[2017] IESC 38
Supreme Court Record Number:
69/2007
High Court Record Number:
2001 15154 P
Date of Delivery:
01/06/2017
Court:
Supreme Court
Composition of Court:
O'Donnell Donal J., McKechnie J., MacMenamin J., Laffoy J., O'Malley Iseult J.
Judgment by:
O'Donnell Donal J.
Status:
Approved
Result:
Appeal allowed
Details:
Dissenting judgment also by McKechnie J.
Judgments by
Link to Judgment
Concurring
Dissenting
O'Donnell Donal J.
O'Malley Iseult J.
McKechnie J., MacMenamin J.
Laffoy J.
O'Malley Iseult J.
MacMenamin J.



THE SUPREME COURT


[Supreme Court No.: 69/2007]

O’Donnell J.
McKechnie J.
MacMenamin J.
Laffoy J.
O’Malley J.

      Between:

David Walsh
Plaintiff/Respondent


And


Jones Lang Lasalle Limited
Defendant/Appellant

Judgment of O’Donnell J. delivered on the 1st June of 2017

1 The evidence in this case in the High Court was brief indeed. Unusually, it was presented to this Court not in a verbatim transcript, but in a comprehensive, agreed note prepared by junior counsel. This may be simply happenstance, or it may be an indication that the parties did not consider the case to be of particular importance, or to have merited the extended consideration which it has received. The note is, however, concise but comprehensive, and allows the legal issues to be placed in context. After a two-day hearing in November, 2006, the High Court delivered judgment in January, 2007 ([2007] IEHC 28), awarding the plaintiff, a property investor, €350,000 in damages in respect of a negligent misstatement in particulars contained in a sales brochure produced by the defendants, a well known firm of estate agents and auctioneers. The defendants have appealed against the finding of liability only. There is no appeal in relation to quantum.


Facts
2 The plaintiff was in the business of management training, and it is said, also invested in property. It is not entirely clear if his property investment interests extended much beyond investing in premises in which he carried on business and renting out any spare space, but it was not contested that he was a person who had significant experience in the property market. In the year 2000, he owned premises at Cumberland Street on the north side of Dublin city, but was considering selling these premises and moving. In the middle of 2000, he saw an advertisement in a newspaper that premises at 77 Upper Gardiner Street, Dublin 1, were for sale. At around the same time, he received a call from an agent in the firm of Palmer McCormack, who knew that he was looking for premises and thought that the premises at 77 Upper Gardiner Street might be suitable. Mr. Walsh went to see the premises with the agent for Palmer McCormack who was, however, not formally acting as his advisor. He was also accompanied by the training manager from his own business, who was to view the premises from the point of view of suitability for the training enterprise. Mr. Walsh’s plan was to perhaps acquire the premises if they were suitable for the business, occupy so much of them as that required, and to rent out the remainder of the premises. It is hardly necessary to recall that this was the year 2000 and the property market was starting to move dramatically. Rents and capital appreciation were likely to be strong, and development was particularly profitable.

3 The plaintiff went back to the premises again on the 14th July, 2000. There, he met a Mr. Woody O’Neill of Jones Lang Lasalle who gave him the brochure in question which has been almost the sole focus of this case. To call this document a brochure is, perhaps, an overstatement. It was two pages stapled together in a format familiar to anyone who has visited estate agents’ premises or viewed property, even casually. It was on what appears to be standard Jones Lang Lasalle Industrial Property headed notepaper and contained the name, address and contact details of Jones Lang Lasalle and a photograph of the premises. Above the photograph, the words “For Sale (By Private Treaty) Excellent Redevelopment Opportunity” appeared in large print. Immediately underneath the photograph was set out the address of the premises and the following details:

        “2,142 m2 (23,057 sq ft)

        Site Area 0.13 Hectares (0.31 Acres)”.

There were some further details as to location and zoning and the names of persons within Jones Lang Lasalle who could be contacted about the premises. At the bottom of the page in smaller print (although roughly the same size print as the name, address and telephone and email details of Jones Lang Lasalle at the top of the page, and certainly not illegible) was the following disclaimer:
      “Whilst every care has been taken in the preparation of these particulars, and they are believed to be correct, they are not warranted and intending puchusers (sic) /lessees should satisfy themselves as to the correctness of the information given.”
The core fact in this case is that the measurement of the premises (23,057 sq ft) was incorrect. The legal issue is whether, in the light of the disclaimer, the estate agents are liable to the plaintiff in respect of that misstatement.

4 It seems likely, to me at least, (and there was no dissent on this at the hearing in this Court) that this was in a standard form, and was produced from a template used for all brochures and flyers produced by Jones Lang Lasalle, and that the details of any individual premises are printed out on note paper containing this heading and this disclaimer. It was, and I think would probably be understood as, a general disclaimer invoked by the agents. Indeed, the reference to intending purchasers/lessees shows that this was a general statement which applied to all cases, whether the premises were for sale or for rent, rather than a statement specifically adapted to any particular case such as this which was clearly only a sale of the premises and directed towards development. There was evidence that all substantial firms active in the property market in Dublin at the time had a similar form of disclaimer, although there was no evidence as to the precise terms of the different disclaimers.

5 Litigation has the capacity to focus with great intensity upon the critical issues in any case. Here, the disclaimer is central to the legal issue which must be determined on this appeal, and it will be necessary to return to that in some detail. However, it is important to place such details in their broader factual and legal context. For that reason, I think it is necessary to set out what was contained on both pages of the brochure.


The Brochure
6 As already set out above, the first page contained a photograph of substantial premises on Upper Gardiner Street. The second page contained a large map of the north city area in Dublin with an indication of the location of this property. The text on the first page above the photograph was, as already set out:

        For Sale (By Private Treaty)

        Excellent Redevelopment Opportunity” .

Underneath the photograph in slightly smaller type were the words:

        “77 Upper Gardiner Street

        Dublin 1

        2,142m2 (23,057 sq ft)

        Site Area 0.13 Hectares (0.31 Acres)”.

On a further line and in smaller print again were the words:

        • “Excellent city centre location close to numerous commercial and institutional occupiers including the Dublin Institute of Technology, Temple Street Children’s Hospital and Discount Electric

        • Zoned Z8 “primarily residential and compatible office and institutional uses””.

After a space were the words:

“Contact: Nigel Healy, Woody O’Neill or David Browne”.

And at the bottom of the page in smaller print again was the disclaimer already quoted.

7 On the second page of the brochure, underneath a location map, were the following words:

        Location

        • Situated in the heart of Dublin’s north inner city approx. 5 minutes walk from Dublin city centre

        • Short distance from Mountjoy Square at the southern end of Upper Gardiner Street

        • Nearby occupiers include Dublin Institute of Technology, DID Electrical and Discount Electric

        Description

        • High profile two storey corner property with extensive frontage to Upper Gardiner Street and Belvedere Court

        • Comprises a mixture of retail and showroom, storage and office accommodation over two floors

        Accommodation

        M2 Sq Ft

        Ground Floor 1,170 12,594

        First Floor 972 10,463

        Total 2,142 23,057

        Site Area 0.13 Hectares (0.31 Acres)

        Opportunity

        • Provides an excellent redevelopment opportunity and, subject to the necessary planning permission, would be ideally suitable for residential, commercial or mixed scheme. Vacant possession will be provided in Autumn 2000

        Title

        • Freehold/Long leasehold

        Price

        • On application”

8 It should be observed immediately that the information contained on both pages of the brochure is incorrect. The true area of the first floor was 8,573.5 sq ft making the overall area 21,248 sq ft. This represented a 20% discrepancy on the first floor figure and an overall 8% discrepancy in the total area. The shortfall was just over 1,800 sq ft, which, as observed by one member of the Court, is the size of a reasonably sized suburban home. It is also worth observing at this point that while some of the information contained in the brochure might reasonably be expected to have been obtained from other sources, the figures for area would perhaps be thought more likely to have come from the agents themselves, or at least to be within their field of expertise. In the event, it seems probable that the error was made by the defendant firm. Furthermore, the precision of the figures, 23,057 sq ft and 10,463 sq ft, might suggest a fairly specific measurement exercise. It is also important to be aware that the internal area of a building is important for the rental market, since rents, particularly those of commercial property, may be agreed on a per square foot basis.

9 Mr. Walsh showed interest in the premises, and he may have made an initial offer. He also commissioned a survey of the premises which was carried out by Mr. Val O’Brien. This was a condition survey and did not involve any measurement. He was informed that there was substantial interest in the premises from some 12 to 14 other bidders, and that the agents were seeking the final and best offer by the 28th July, 2000. Mr. Walsh gave evidence that he did a back-of-the-envelope calculation. He allowed a figure of £8 per sq ft for the storage area, and a figure of £20 per sq ft for both the ground floor and first floor area. This, he said, suggested a rental value of £320,000 per annum and therefore a value of £4 million for the premises (on an assumed yield of 8%, presumably). He then had to allow for refurbishment and other costs. He thought that this suggested the premises were worth £2.5 million and decided to bid something less than this. He submitted a bid of £2.342 million which was successful. The sale closed on the 28th September, 2000.

10 Thereafter, Mr. Walsh sought the assistance of Palmer McCormack in letting the property. It transpired that what was then the North Eastern Health Board was very interested in the property and was willing to rent the first floor area at a figure in the region of £20 per sq ft. There were other provisions agreed between the parties including very substantial refurbishment, most of which was paid for by the North Eastern Health Board and which would clearly have an impact on the purchase price and the rental value. In the process of letting, it was, however, necessary to obtain precise figures for the area to be let to the Board. Mr. O’Brien was requested to carry out that exercise, and in the course of doing so, the discrepancy already identified came to light.

11 It is, perhaps, fair also to point out that the calculation carried out by Mr. Walsh was a crude and speculative one. As was pointed out, the figures contained in the brochure did not give any indication as to whether they were internal or external measurements, and perhaps more particularly, whether they were gross or net figures. It is only the net area (that is the gross area less areas such as stairwells, hallways and bathrooms) which can be rented, and therefore the calculations made by Mr. Walsh were very rough indeed. The judge, however, accepted that Mr. Walsh did this exercise, and for that purpose utilised the figures contained in the brochure.

12 There is no direct evidence as to how the particular error was made. The documentation in the appeal book includes a letter from Jones Lang Lasalle to its own client, the vendor, of the 22nd June, 2000, recording a figure as supplied by the vendor of approximately 2,084 sq m or 22,439 sq ft. It appears that this figure, in turn, was derived from a detailed table of measurements of unknown origin which had been faxed to the agents on the same day along with a floor plan. It will be noted that this is a third figure for the area and differs both from the figure contained in the brochure (23,057 sq ft) and the correct figure subsequently measured by Mr. O’Brien (21,248 sq ft). It appears possible that the (erroneous) figure included in the brochure was derived from some calculation carried out on the floor plan since the author of the letter, Mr. Healy, stated that the site area had been derived from the plans supplied. There is, however, no precise evidence on this. It appears likely that the figure of 23,057 sq ft was something which was arrived at by Jones Lang Lasalle because there is a hand written draft of the brochure containing that figure. Incidentally, the same letter of the 22nd June, 2000, indicated Jones Lang Lasalle’s view that the main use likely to be made of the premises was residential redevelopment (in which case the relevant figure would be the site area). Furthermore, Jones Lang Lasalle advised the vendor that on this basis, they considered that a figure of £1 million might be achieved for the premises. Even allowing for some degree of underestimation on the part of the agents, the discrepancy between this figure, some of the bids, and the ultimate price paid by Mr. Walsh is some indication of the buoyancy of the property market at that time. It also illustrates the difficulty of suggesting a precise value for the premises as of the 28th September, 2000.

13 Mr. Walsh said that when he discovered the error in the printed brochure, he was horrified. These proceedings were commenced in 2001 but did not come to trial until 2006. At that stage, it appears that the property was worth a significant multiple of the purchase price. Indeed, it was suggested to Mr. Walsh without demur that it was worth in the region of €7.6 million. The plaintiff claimed, however, that he had suffered a loss of €590,000 based on an estimate of the lost rental value into the future. The trial judge took the view that this was not the appropriate measure of damages, and considered that the correct approach was to calculate the amount by which it could be said that Mr. Walsh had overpaid for the premises in reliance on the mistaken floor area and awarded €350,000 in damages. There is no appeal in relation to the quantum of damages.

14 On the question of liability, and in particular, the significance of the disclaimer, the evidence was limited. Mr. Walsh frankly admitted that he had seen the disclaimer. He said, however, that he considered it dealt with minor matters. It was acknowledged that disclaimers in some form were a common feature in the industry and were used by all firms then operating in the market in Dublin. Mr. Barry Smith, a well known and respected valuer, gave evidence for the plaintiff. He considered that where measurements were provided by a reputable firm of agents, the prospective purchaser did no go to the expense of carrying out their own measurement exercise. He agreed, however, with Peter Rowan of Lambert Smith Hampton, the expert called on behalf of the defendants, that a prudent investor or intending purchaser should carry out a detailed inspection and measure all floor areas before purchasing a property. Mr. Rowan said it would not be normal or prudent and would not be considered acceptable practice to rely solely on the measurements set out in a sales brochure prepared by the vendor’s agent. It was acknowledged on behalf of Jones Lang Lasalle that none of the prospective purchasers had reverted to that firm and queried the measurements or suggested there was any discrepancy in them. This might have suggested that none of those purchasers had carried out a detailed measurement exercise, although there is no evidence as to whether any of them intended to rent the existing premises rather than to develop them.

15 This evidence, while useful background, does not resolve the issue in this case. That ultimately turns on an analysis of the applicable law, the test to be applied, and a consideration of the terms of the disclaimer in the light of the applicable law. Relying in part on the then relatively recent decision of the Supreme Court in Wildgust & anor v. Bank of Ireland & anor [2006] 1 IR 570, the High Court concluded that the defendant was liable and that the disclaimer did not operate to protect the defendant. The reasoning of the learned trial judge is contained in a number of passages commencing at the following paragraph where he addressed the question as follows:

      “It seems to me that the question for determination in relation to the ‘waiver’ is, whether its presence within the brochure and its precise terms, are together sufficient to exclude the defendant from liability to the plaintiff in respect of negligence by the defendant in the incorrect measurement of the floor area of the property and negligent misstatement on the part of the defendant in publishing the incorrect measurements of the floor area. On the evidence I do not believe that they are sufficient.”

16 The trial judge elaborated on this and concluded:

      ` “If the defendant wished to reserve to itself the right (a) to publish within its sales brochure, precise measurements which were in fact grossly inaccurate and (b) to relieve itself of liability to the category of persons to whom the brochure and its contents were directed, then there was an obligation upon the defendant to draw to the attention of the plaintiff and other prospective purchasers the fact that the seemingly precise measurements published were likely to be wholly unreliable and should not be relied upon in any circumstances.

      By including within its brochure an enigmatic sentence in small print claiming to have taken particular care in the preparation of all of the particulars within the brochure but advising prospective purchasers to ‘satisfy themselves as to the correctness of the information given’ the defendant failed to discharge that obligation.

      On the evidence of the practice adopted by buyers and sellers of commercial property in Dublin at the relevant time the defendant’s ‘disclaimer’ was a quite inadequate means of notifying prospective purchasers that the seemingly precise measurements of the floor areas so prominently published within the sales brochure were wholly unreliable.

      It follows that the ‘waiver’ published at the bottom of the front page of the defendant’s brochure was not effective to relieve the defendant of liability in respect of negligence and negligent misstatement of the type contended for on behalf of the plaintiff.” (emphasis added)

17 I appreciate that the way in which the case was approached in the High Court meant that this judgment was not likely to make precise distinctions of law, or to provide elaborate reasons for its conclusion. I think it is fair to summarise the decision in the following way. It appears that the Court concluded, in effect, that there was sufficient proximity between the parties to give rise to a duty of care (and perhaps that it was not necessary to distinguish between negligent acts and negligent statements) and that the disclaimer was not effective to relieve the defendant of liability for negligence in making such a statement.

18 There is an undeniable attraction in taking the approach of treating this case as an individual instance having no broader implications for the law and capable of being decided on its own facts by reference to the well known principles of Hay v. O’Grady [1992] I.R. 210 which sets out the limitations of appellate review. This is indeed the way in which many negligence actions are resolved. Although the vast majority of civil claims depend at bottom upon the law of negligence, almost all of them are resolved without any dispute about, or even reference to, legal principles. Such cases are resolved almost by rules of thumb that mean that most cases are decided on the issue of whether some element which can be described as negligence has been proven in fact. This is not to say that the resolution of such cases is not of considerable importance for the individuals involved and does not require considerable skill; merely that detailed analysis of law is rare. Once some carelessness can be shown, it is assumed that the plaintiff should succeed. There is, indeed, a lot to be said for the pragmatic approach. The settlement of difficult cases may be a form of soft law, but it can be a useful way to achieve some broad justice. Here, indeed, there was much to be said for not having pressed these matters to a determination. On the plaintiff’s side, by the time the case came on, it was certainly artificial to speak of the plaintiff having suffered any losses from an investment that was extremely successful. On the defendant’s side, whatever the legal effect of the waiver, attention would be directed to an error which must surely have been embarrassing for a firm conscious of its reputation for expertise. Many mathematical and measurement errors can indeed be made even though time and care is taken. But once an error is identified, it is hard to dispute that if more care had been taken, it would not have been made.

19 However, this case proceeded to hearing and was determined in favour of the plaintiff. Again, if it were permissible to take a broad brush approach to this case, then the result is certainly not one which is demonstrably unfair. Jones Lang Lasalle did not deny that it was careless in providing inaccurate measurements, something which was well within its expertise. Furthermore, the waiver upon which it now relies stated that “every care” had been taken. Again, therefore, if it were permissible to approach this case as simply one more instance of the “wilderness of single instances” of the law of negligence and raising no broader issue, it would not call for much judicial attention. However, this appeal, whether viewed narrowly or broadly, raises important issues of law which this Court cannot, at least in my view, and should not properly avoid.

20 It is necessary to place this claim in a wider context. Insomuch as it is contended that that there was sufficient proximity, indeed neighbourhood between the parties here, sufficient to justify the imposition of a duty of care on Jones Lang Lasalle in respect of the plaintiff, such proximity, is created by a transaction in this case, the purchase of land which is itself regulated by contract in terms familiar to lawyers, and to members of the public, particularly those who engage in property investment. The plaintiff here entered into a contract to buy the property from the vendor. Jones Lang Lasalle acted as agents for the vendor in marketing the property. The relationship between the vendor and Jones Lang Lasalle was itself, essentially, contractual. Neither of these two contracts were discussed in evidence or in the judgment of the High Court, but they create two sides of a triangular relationship which the plaintiff contends justifies the imposition of a duty of care on Jones Lang Lasalle towards the plaintiff. The absence of any contractual claim against the vendor either for rescission for misrepresentation (admittedly an unlikely and undesirable remedy from the plaintiff’s point of view given the intervening movement of the market) or, more realistically, a claim for damages for breach of warranty suggests that here, the statement or misstatement by Jones Lang Lasalle in relation to the area of the premises did not have contractual significance at least as between the purchaser and the vendor. It does not appear that the area of the premises was a term of the contract between the vendor and purchaser. An important starting point, therefore, is that the misstatement as to the size of the premises does not appear to have had legal consequences as and between the primary parties to the sale, and therefore, and in consequence, between Jones Lang Lasalle and its client who was, after all, paying for Jones Lang Lasalle’s services. It is against this background that the claim that the vendor’s agents owed to the purchaser a duty of care must be approached. This reinforces, in my view, the importance of recalling that the starting point of the analysis in Hedley Byrne v. Heller [1964] AC 465 was that normally a party does not owe a duty in tort to another in respect of statements made by them. This is an important distinction. In the area of actions it can be said the starting point is normally “duty of care unless”, whereas for statements it is a case of “duty of care only if”.

The Broad or Narrow Approach to Liability
21 The narrow version of the plaintiff’s claim depends solely on the interpretation of the waiver for the purposes of the traditional law of negligent misstatement. The question here is whether the relationship between the parties is sufficient to create a duty of care and a disclaimer can be an important piece of evidence in that regard. The plaintiff’s case, on this narrow version, is simply that the terms of the waiver here are not sufficient to mean that a duty of care did not arise. A broader version of the claim, which appears to be discernible at points in the judgment of the High Court and in the submissions made to this Court, would, however, involve a significant development of the law, and a blurring of the distinction between negligent misstatement and the law of negligent acts, if not its removal. In the context of this case, these two approaches have significant differences for the analysis of the waiver clause. On the traditional principles of negligent misstatement, a waiver is relevant when considering whether a duty of care arose at all. A waiver is interpreted fairly broadly in considering whether the defendant can be said to have assumed, as between itself and a plaintiff, the risk of error. However, if the case is approached on the basis that there was an existing duty of care by reason of the proximity of the parties, then the waiver becomes a clause excluding or limiting liability to which courts have traditionally applied a very strict analysis. It is clear, therefore, that the manner in which the case is approached may have significant, indeed decisive, impact on the outcome.


The decision in Hedley Byrne v. Heller
22 The landmark decision in Hedley Byrne v. Heller [1964] AC 465 established the principle that the author of a statement could, in certain circumstances, be liable for financial loss caused by it to a person relying on it. This principle was almost immediately adopted in Ireland in Securities Trust Ltd. v. Hugh Moore & Alexander Ltd. [1964] I.R. 417, and Bank of Ireland v. Smith & Ors. [1966] I.R. 646 and since then it has been accepted that the development of Irish law flows from the analysis originally made in that case. Hedley Byrne contained an important statement that, in principle, liability in negligence could extend beyond negligent acts causing physical damage and consequential loss covered by the principle in Donoghue v. Stevenson [1932] AC 562. The House of Lords made it clear, however, that different principles applied in the case of damages claimed as a result of statements made rather than acts done or omitted to be done. Importantly, the House of Lords also held (indeed it was the ratio decidendi of that case) that any duty of care for negligent misstatement could be negatived by an appropriate disclaimer. For these reasons, Hedley Byrne is particularly relevant to this case.

23 In that well known case, advertising agents who were contemplating acting on behalf of a company and placing advanced advertisements for which the agents would be personally liable sought information as to the prospective clients’ financial stability. They requested their bank to make inquiries from Heller & Partner who were bankers to the client company. Heller replied “in confidence and without responsibility on our part” that the company was believed to be “respectably constituted and considered good for its normal business engagements”. It was also stated that the bank believed “that the company would not undertake any commitments they were unable to fulfil”. This information was passed on to the plaintiff advertising agents by letter stating that it was “for your private use and without responsibility on the part of [the plaintiff’s bankers]”. Some months later, the request was repeated. On that occasion, Heller & Partner sent a letter to the plaintiffs bankers headed “CONFIDENTIAL For your private use and without responsibility on the part of this bank or its officials” the advice given was that the company in question was “a respectably constituted company, considered good for its ordinary business engagements. Your figures are larger than we are accustomed to see”.

24 As is well known, the House of Lords decided that in principle, statements such as this could give rise to a liability, but that in that case, any such duty of care was negatived by the terms of the disclaimer. It is worth, however, considering in rather greater detail the terms of the speeches delivered and, in particular, those of Lords Reid, Devlin and Pearce.

25 At pp. 482-484, Lord Reid stated:

      “The appellants' first argument was based on Donoghue v. Stevenson. That is a very important decision, but I do not think that it has any direct bearing on this case. That decision may encourage us to develop existing lines of authority, but it cannot entitle us to disregard them. Apart altogether from authority, I would think that the law must treat negligent words differently from negligent acts. The law ought so far as possible to reflect the standards of the reasonable man, and that is what Donoghue v. Stevenson sets out to do. The most obvious difference between negligent words and negligent acts is this. Quite careful people often express definite opinions on social or informal occasions even when they see that others are likely to be influenced by them; and they often do that without taking that care which they would take if asked for their opinion professionally or in a business connection. The appellant agrees that there can be no duty of care on such occasions, and we were referred to American and South African authorities where that is recognised, although their law appears to have gone much further than ours has yet done. But it is at least unusual casually to put into circulation negligently made articles which are dangerous. A man might give a friend a negligently-prepared bottle of homemade wine and his friend's guests might drink it with dire results. But it is by no means clear that those guests would have no action against the negligent manufacturer.

      Another obvious difference is that a negligently made article will only cause one accident, and so it is not very difficult to find the necessary degree of proximity or neighbourhood between the negligent manufacturer and the person injured. But words can be broadcast with or without the consent or the foresight of the speaker or writer. It would be one thing to say that the speaker owes a duty to a limited class, but it would be going very far to say that he owes a duty to every ultimate ‘consumer’ who acts on those words to his detriment. It would be no use to say that a speaker or writer owes a duty but can disclaim responsibility if he wants to. He, like the manufacturer, could make it part of a contract that he is not to be liable for his negligence: but that contract would not protect him in a question with a third party, at least if the third party was unaware of it.

      So it seems to me that there is good sense behind our present law that in general an innocent but negligent misrepresentation gives no cause of action. There must be something more than the mere misstatement. I therefore turn to the authorities to see what more is required. The most natural requirement would be that expressly or by implication from the circumstances the speaker or writer has undertaken some responsibility, and that appears to me not to conflict with any authority which is binding on this House. Where there is a contract there is no difficulty as regards the contracting parties: the question is whether there is a warranty. The refusal of English law to recognise any jus quaesitum tertii causes some difficulties, but they are not relevant, here. Then there are cases where a person does not merely make a statement but performs a gratuitous service. I do not intend to examine the cases about that, but at least they show that in some cases that person owes a duty of care apart from any contract, and to that extent they pave the way to holding that there can be a duty of care in making a statement of fact or opinion which is independent of contract.” (Emphasis added)

26 I have set out this passage at length because it makes it clear at the very outset that a clear distinction is being made between liability for negligent acts and misstatements. Lord Reid’s reference to contract and those cases where English law refused to recognise rights of a third party to sue on contracts is also instructive since it sets up an important point of comparison by reference to which any claim of the duty of care must be analysed. Again, the emphasis on the undertaking of responsibility for a statement is important. This leads to the portion of the speech containing the decision in principle at p. 486:
      “A reasonable man, knowing that he was being trusted or that his skill and judgment were being relied on, would, I think, have three courses open to him. He could keep silent or decline to give the information or advice sought: or he could give an answer with a clear qualification that he accepted no responsibility for it or that it was given without that reflection or inquiry which a careful answer would require: or he could simply answer without any such qualification. If he chooses to adopt the last course he must, I think, be held to have accepted some responsibility for his answer being given carefully, or to have accepted a relationship with the inquirer which requires him to exercise such care as the circumstances require.

27 This analysis led to the important conclusion that the decision of the Court of Appeal in Candler v. Crane, Christmas & Co. [1951] 2 K.B. 164 was wrongly decided, and that the dissent of Denning L.J. was correct. That case was one where accountants to a company had been asked to complete the preparation of accounts in order that they be shown to a prospective purchaser. The accountants went further and showed the accounts to the purchaser themselves, discussed them with him, and allowed him to take a copy. In those circumstances, Lord Reid considered, a duty of care arose. Again, this is perhaps an important illustration of circumstances in which liability can arise: the defendant accountants have done more than issue general accounts which might be considered by the world at large; they had engaged in a personal interaction with the plaintiff as to the terms of the accounts and did so in the specific context of the likely purchase by the plaintiff of the company.

28 However, having held that a duty of care in respect of statements made could arise in principle, Lord Reid considered that no such duty arose in the particular case because of the terms of the disclaimer. In so doing, he made an important distinction between disclaimers in such circumstances, and an exemption clause purporting to excuse a party from a liability which he or she had undertaken under contract, or which already exists in tort (at p. 492):

      “The appellants founded on a number of cases in contract where very clear words were required to exclude the duty of care which would otherwise have flowed from the contract. To that argument there are, I think, two answers. In the case of a contract it is necessary to exclude liability for negligence, but in this case the question is whether an undertaking to assume a duty to take care can be inferred: and that is a very different matter. And, secondly, even in cases of contract general words may be sufficient if there was no other kind of liability to be excluded except liability for negligence: the general rule is that a party is not exempted from liability for negligence ‘unless adequate words are used’ per Scrutton L.J. in Rutter v. Palmer. It being admitted that there was here a duty to give an honest reply, I do not see what further liability there could be to exclude except liability for negligence: there being no contract there was no question of warranty.

      I am therefore of opinion that it is clear that the respondents never undertook any duty to exercise care in giving their replies. The appellants cannot succeed unless there was such a duty and therefore in my judgment this appeal must be dismissed.”

29 The speech of Lord Devlin was broadly to the same effect. At pp. 524-525, he observed:
      “Now, it is not, in my opinion, a sensible application of what Lord Atkin was saying for a judge to be invited on the facts of any particular case to say whether or not there was “proximity” between the plaintiff and the defendant. That would be a misuse of a general conception and it is not the way in which English law develops. What Lord Atkin did was to use his general conception to open up a category of cases giving rise to a special duty…

      The real value of Donoghue v. Stevenson to the argument in this case is that it shows how the law can be developed to solve particular problems. Is the relationship between the parties in this case such that it can be brought within a category giving rise to a special duty?”

30 At pp. 528-529 of the report, Lord Devlin made the important point that the absence of a contract was not dispositive since there may be circumstances where a person or business gets indirect benefit from the provision of information outside of a contractual relationship, and it was therefore entirely reasonable to find that the duty of care arose:

      “I think, therefore, that there is ample authority to justify your Lordships in saying now that the categories of special relationships which may give rise to a duty to take care in word as well as in deed are not limited to contractual relationships or to relationships of fiduciary duty, but include also relationships which in the words of Lord Shaw in Nocton v. Lord Ashburton are ‘equivalent to contract,’ that is, where there is an assumption of responsibility in circumstances in which, but for the absence of consideration, there would be a contract. Where there is an express undertaking, an express warranty as distinct from mere representation, there can be little difficulty. The difficulty arises in discerning those cases in which the undertaking is to be implied. In this respect the absence of consideration is not irrelevant. Payment for information or advice is very good evidence that it is being relied upon and that the informer or adviser knows that it is. Where there is no consideration, it will be necessary to exercise greater care in distinguishing between social and professional relationships and between those which are of a contractual character and those which are not. It may often be material to consider whether the adviser is acting purely out of good nature or whether he is getting his reward in some indirect form. The service that a bank performs in giving a reference is not done simply out of a desire to assist commerce. It would discourage the customers of the bank if their deals fell through because the bank had refused to testify to their credit when it was good.”
31 While acknowledging that the categories could be expanded, Lord Devlin approached the case on the basis that “wherever there is a relationship equivalent to contract, there is a duty of care”. As he said at page 532:
      “The question is whether the appellants can set up a claim equivalent to contract and rely on an implied undertaking to accept responsibility.”
However, on the facts of the present case, he held that there was no assumption of responsibility and therefore no duty of care. At page 533, he said:
      “I agree entirely with the reasoning and conclusion on this point of my noble and learned friend, Lord Reid. A man cannot be said voluntarily to be undertaking a responsibility if at the very moment when he is said to be accepting it he declares that in fact he is not. The problem of reconciling words of exemption with the existence of a duty arises only when a party is claiming exemption from a responsibility which he has already undertaken or which he is contracting to undertake.”

32 Lord Pearce also addressed the argument that the disclaimer in that case was not sufficiently precise to exclude liability for negligence. At page 540, he said:

      “Nothing, however, except negligence could, in the facts of this case, create a liability (apart from fraud, to which they cannot have been intended to refer and against which the words would be no protection, since they would be part of the fraud). I do not, therefore, accept that even if the parties were already in contractual or other special relationship the words would give no immunity to a negligent answer. But in any event they clearly prevent a special relationship from arising. They are part of the material from which one deduces whether a duty of care and a liability for negligence was assumed. If both parties say expressly (in a case where neither is deliberately taking advantage of the other) that there shall be no liability, I do not find it possible to say that a liability was assumed.”

33 The decision in Hedley Byrne v. Heller was accepted as representing Irish law in the case of Securities Trust Ltd v. Hugh Moore & Alexander Ltd. [1964] I.R. 417. In Bank of Ireland v. Smith & Ors [1966] I.R. 646, an advertisement of land for sale in court in a mortgage suit stated, erroneously, that a portion of the land was sown with barley and undersown with permanent pasture. The statement was made by auctioneers who were agents for the vendors. Kenny J. held that it would be against conscience that the vendor in a court sale should not be bound by a representation made by the agent in connection to the sale. Accordingly, the purchaser was entitled to cover damages for breach of warranty from the vendor. However, Kenny J. rejected the further claim that the auctioneers were liable in tort for negligent misstatement, and at page 659, he said:

      “It was said that an auctioneer acting for a vendor should anticipate that any statements made by him about the property will be relied on by the purchaser and that he, therefore, owes a duty of care to the purchaser and is liable in damages to him if the statement was incorrect and was made carelessly. In my opinion the decision in Hedley Byrne & Co. v. Heller does not give any support to this startling proposition. It decides that if a person seeks information from another in circumstances in which a reasonable man would know that his judgment is being relied on, the person giving the information must use reasonable care to ensure that his answer is correct, and if he does not do so he is liable in damages: but the relationship between the person seeking the information and the person giving it, if not fiduciary or arising out of a contract for consideration, must be, to use the words of Lord Devlin, ‘equivalent to contract before any liability can arise’.”
From these extracts, it is clear that, at least at the outset, the approach to any disclaimer in negligent misstatement was to view it as a piece of evidence relevant to the question of whether a relationship existed sufficient to give rise to a duty of care, and that was not appropriate to approach a disclaimer with the strictness that the courts analyse exemption clauses seeking to exclude liability which already exists.

34 The law has developed in the intervening period and there are some instructive examples of purchasers succeeding in claims against estate agents acting ostensibly on behalf of vendors. In McAnarney v. Hanrahan [1993] 3 I.R. 492, Costello J. upheld a plaintiff’s claim against an auctioneer in respect of statements made in the course of a sale. In that case, the defendant had considerable interaction with the plaintiff, and misrepresented to them that the premises had been withdrawn at auction at a price, and furthermore that the owners of the freehold had indicated a willingness to sell it for approximately £3,000. On those representations, the plaintiff agreed to pay £55,000 for the leasehold interest although they had previously intended to pay no more than £45,000. The purchase proved disastrous for the plaintiff, who sued in respect of the misrepresentation. Costello J. held that the dealings between the parties were such that a special relationship had arisen between them, imposing on the defendant auctioneer a duty of care in giving the information. This is an example of a situation in which an auctioneer or estate agent can owe a duty of care to a person other than his or her client. Here, however, liability arose because of quite extensive dealings with the plaintiff in circumstances where, to borrow the analysis of Lord Devlin, while the plaintiff was not formally a client of the agent/auctioneer, they had a relationship which was of indirect benefit to the estate agent/auctioneer. Accordingly, the plaintiff was entitled to recover, but only the difference between the price paid and the true value of the land. Similarly, in McCullough v. Gunne, (Unreported, High Court, Carroll J., 17th January 1997), the High Court held that where plaintiffs who had never dealt in property before went to a defendant auctioneer/estate agent and “asked him to keep them straight”, the auctioneer owed a duty of care to them as well as to the owners of the premises for whom he was acting, when the plaintiffs bought it. In neither of these cases was a disclaimer relied upon, and the dealings between the parties extended far beyond the provision of standard particulars of sale. Both of these cases are consistent, therefore, in that while a duty of care did not arise generally from the fact that an auctioneer may have been acting on behalf of a vendor, the particular dealing between the parties gave rise to a special relationship on the facts of the individual case. Doran v. Delaney [1998] 2 I.R. 61 is a variation on this theme. In that case, vendor’s solicitors were, unusually, held to owe a duty of care to a purchaser in circumstances where, as provided in the headnote to the judgment, they passed on information to them “while having reason to believe that it was not wholly truthful”.


McCullagh v. Lane Fox and Partners Ltd.
35 Perhaps the case which is closest to the facts of the present matter is an English case referred to in passing in Doran v. Delaney [1998] 2 I.R. 61. In McCullagh v. Lane Fox and Partners Ltd. [1996] PNLR 205, a firm of estate agents had prepared particulars of a substantial private residence in London adjoining the Thames. The house was described as being set on 0.92 acres. In fact, the gardens only measured 0.48 of an acre. The plaintiff bought the property but later sued the agents for negligent misrepresentation. The particulars contained what, in the words of the headnote to the reported judgment, were described as “typical estate agents disclaimers”. It is right to acknowledge that these were more extensive than the disclaimer in the present case. Thus, the disclaimer was set out in five paragraphs:

      “1. These particulars do not constitute, nor constitute any part of, an offer or contract.

      2. All statements contained in these particulars as to this property are made without responsibility on the part of Lane Fox or the vendors or lessors.

      3. None of the statements contained in these particulars as to this property are to be relied on as statements of representations of fact.

      4. Any intending purchasers must satisfy themselves by inspection or otherwise as to the correctness of each of the statements contained in these particulars.

      5. The vendors do not make or give and neither Lane Fox nor any person in their employment has any authority to make or give any representation or warranty whatever in relation to this property.”

36 The High Court of England and Wales found that the defendant was liable, applying the principle in Donoghue v. Stevenson and holding that the exemption clause was not sufficiently precise to exclude liability in this case. The defendant was a reputable firm of competent surveyors who could be expected to measure the site correctly; the purpose of the provision of the information was to encourage offers by potential purchasers; it was obvious to the defendant that the plaintiff would rely on the information and it was reasonable to do so. There was nothing, in the circumstances, making it unjust to impose liability on the defendant. However, the Court also held that since the true value of the premises was the price paid by the plaintiff, the plaintiff had suffered no loss.

37 The Court of Appeal of England and Wales overturned both conclusions. For present purposes, it is particularly significant that the Court of Appeal held that the disclaimer prevented any assumption of responsibility, and therefore duty of care, from arising. Having quoted Hedley Byrne v. Heller [1964] AC 465, Hobhouse L.J., continued at pages 222-223:

      “Thus the relevance of the disclaimer is to negative one of the essential elements for the existence of the duty of care. It negatives the assumption of responsibility for the statement. It implicitly tells the recipient of the representation that if he chooses to rely upon it he must realise that the maker is not accepting responsibility for the accuracy of the representation. The disclaimer is part of the factual situation which the court has to take into account in deciding whether or not the defendant owed a duty of care to the plaintiff. Put another way, the question is whether the plaintiff was entitled to treat the representation as one for which the defendant was accepting responsibility. This is primarily a factual question.”
Subject to the qualification that once the facts are found, the question of whether, on those facts, a duty of care arises becomes an issue of law, I would agree with this analysis. It is an orthodox application of the decision in Hedley Byrne v. Heller.

38 It is of some interest that the Court of Appeal, however, upheld that part of the decision of the High Court (approved of in Doran v. Delaney) which held that, in principle, a duty of care in tort by an agent to a prospective purchaser could coexist with a contractual liability by the vendor to a purchaser. At pages 230-231, Hobhouse L.J. observed:

      “In this situation, the obviously just result is that the liability to make good the purchaser's loss should ultimately be borne by the party who has been unjustly enriched, that is to say, the vendor. But it does not follow that if, for any reason, the vendor is unable to make good the purchaser's loss the purchaser should not be compensated by the person actually at fault, the solicitor or other agent who made the misrepresentation...

      There are bound to be problems where the careless¬ness of the agent causes his principal's property to be sold at an over-value but they are not avoided by refusing to recognise the tortious liability of the agent for his own fault; and there may be cases where the solicitors' careless misrepresent¬ation has caused other types of loss to the purchaser which do not carry equivalent benefits to the vendor.”

39 Hobhouse L.J. acknowledged at page 224 that in cases such as Smith v. Bush [1990] 1 AC 831 and Caparo Industries v. Dickman [1992] 2 A.C. 605, there had been some criticism of the importance of the concept of assumption of responsibility, but that it was again recognised as important by Lord Goff of Chieveley in Henderson v. Merrett Syndicates Ltd. [1995] 2 A.C. 14 , in an important passage at page 181 which explained the importance of the concept in the analysis of the law of negligent misstatement:

      “In addition, the concept provides its own explanation why there is no problem in cases of this kind about liability for pure economic loss; for if a person assumes responsibility to another in respect of certain services, there is no reason why he should not be liable in damages for that other in respect of economic loss which flows from the negligent performance of those services. It follows that, once the case is identified as falling within the Hedley Byrne principle, there should be no need to embark upon any further enquiry whether it is “fair, just and reasonable” to impose liability for economic loss - a point which is, I consider, of some importance in the present case. The concept indicates too that in some circumstances, for example where the undertaking to furnish the relevant service is given on an informal occasion, there may be no assumption of responsibility and likewise that an assumption of responsibility may be negatived by an appropriate disclaimer.”
This passage reinforces the continuing relevance of the concept of assumption of responsibility, and the significance of the disclaimer in analysing whether such a responsibility has been assumed.

40 Applying this principle to the case of the estate agents providing a statement of acreage, Hobhouse L.J. had regard to the structure of the transaction. Having observed that in many cases the estate agent’s fee may be paid indirectly by the purchase price, and in principle therefore, there was nothing to negative the duty of care, he continued at page 235:

      “In a transaction for the sale of land, it will normally be contemplated that there will be pre-contract enquiries which will be used by the prospective purchaser to obtain specific represen¬tations verifying important facts. Similarly parties will very frequently instruct a surveyor to carry out a structural survey before deciding to make an offer or to exchange contracts. Thus, it does not follow that a representation, although intended to influence the representee, will be relied upon in the relevant way without an intermediate check. It is therefore necessary to examine further the significance of the representation in the transaction. This is not something which is peculiar to estate agents nor does it amount to some special principle of qualified liability for estate agents.”
41 In that particular case, Hobhouse L.J. considered that the disclaimer put the case on all fours with the decision in Hedley Byrne. He then addressed the contrary argument at page 237:
      “The judge avoided this conclusion by approaching the disclaimer as if it were a contractual exclusion. On such an approach it would need to be strictly construed and the argument was available that it did not as such cover an oral statement. But that is not, in my judgment, the right approach. It is not an exclusion to be construed. The right approach, as is made clear in Hedley Byrne, is to treat the existence of the disclaimer as one of the facts relevant to answering the question whether there had been an assumption of responsibility by the defendants for the relevant statement. This question must be answered objectively by reference to what a reasonable person in the position of Mr McCullagh would have understood at the time that he finally relied upon the representation. In this context, it is obvious that the statement that the acreage of the property is 0.92 was a statement which was taken from the particulars and that the defendants were not assuming responsibility for that statement.”
42 Hobhouse L.J. also observed at page 239 that:
      “The normal structure of contracts for the purchase of land is that the intending purchaser, before he exchanges contracts, is able through his own solicitor to interrogate the proposed vendor and is entitled to rely upon the answers to such enquiries as representations which have induced the contract with all the legal consequences that flow from that situation. The use of disclaimers to insulate the estate agent, and the estate agent's principals, from responsibility for representations made by estate agents is commonplace and is the normal basis upon which house sale transactions are carried out every day across the country.”

43 Accordingly, Hobhouse L.J. considered that the disclaimer was not an unfair contractual term. While that specific issue does not arise in this case because the plaintiff was not, here, dealing as a consumer, it is, in my view, relevant to the overall question as to whether a duty of care arose or was negatived by the terms of this disclaimer. As I have said earlier, the proximity of the parties here is created by the contract between the purchaser and the vendor, and arguably the contract between the vendor and its agents. It is relevant to know how those contracts assigned the risk of error. Finally, it is notable that Nourse L.J., concurring, was prepared to agree with Slade L.J. that even in the absence of a disclaimer no duty of care arose.

44 This is obviously an important case, and if it correctly represents the law of Ireland, it is strong authority against the plaintiffs in this case. . It is important to recognise that it is not possible to distinguish Mc Cullagh on the basis merely that the disclaimer was in more extensive terms than the disclaimer in this case. Recognising perhaps the difficulty posed by the disclaimer, the plaintiff in Mc Cullagh had focused entirely on an oral statement of acreage made to the plaintiff when he was viewing the property and before he had received the printed particulars. This case, therefore, is authority for the continued application of the approach set out in Hedley Byrne v. Heller [1964] AC 465 where the disclaimer is viewed not as an exemption clause, but rather as part of the evidence as to whether a risk had been assumed, and a duty of care arisen.

45 The narrow point made by the plaintiff/respondent does not seek to argue that Irish law is in any respect different to that set out in Hedley Byrne and McCullagh v. Lane Fox and Partners Ltd. Rather, it is simply that the words in the disclaimer here, which are concededly less clear and less elaborate than those in the McCullagh case, for example, are simply not sufficient to exclude or avoid liability. It seems to me, however, for the reasons already addressed, that this is not the correct approach. The disclaimer should not be approached in an attempt to exclude a pre-existing liability whether contractual or tortious, and accordingly strictly construed. Instead, it is to be considered as one, albeit an important, piece of evidence as to whether the agent, retained by the vendor, assumed responsibility in this case to the plaintiff purchaser (without consideration) for the accuracy of the statements contained in the particulars. This must be assessed in the light of all of the facts, and in particular, the structure of the transaction which takes place in a relationship between each of the parties controlled by contract in familiar and well understood terms. It is relevant, in my view, that the special relationship and assumption of liability are alleged to arise from the terms of particulars made available generally rather than from any specific interaction between any employee of Jones Lang Lasalle and the plaintiff. It is also relevant that the general structure of the transaction is one where the agent acts for and owes duties to the vendor. Again, it is not irrelevant that the purchasers did not apparently obtain any provision in the contract, in a warranty or otherwise in relation to the size of the premises. It would be unusual for an agent to undertake a gratuitous responsibility when the principal, who was receiving consideration, had not. Again, it is relevant that even though this was a substantial commercial transaction, which can carry significant fees for the agents, (suggested to be in the region of 1.5%) that the element of that fee which should represent profit to the agent is a tiny fraction of the potential liability here, excluding costs. Again, it would be unusual that an agent would gratuitously assume that risk. Against that background, I cannot see the disclaimer as anything other than an assertion, unsurprising to anyone dealing in the property market, that Jones Lang Lasalle was not responsible for the accuracy of anything contained in the particulars.

46 I think this conclusion can be tested in a number of ways. The plaintiff’s case is undoubtedly strengthened by the fact that the error here is in relation to measurements, which would fall into the area of expertise and responsibility of the agent. But the particulars are not confined to the measurements, on which almost all of the attention was focused in this case. Among a number of other things, details are given in relation to tenure, zoning, development potential and likely vacant possession. It is difficult, if not impossible, to read the particulars including the waiver/disclaimer against the known background of the transaction and its well understood structure as being nevertheless an assumption of responsibility on the part of the agents in respect of these matters. But if this is the case, then it is equally, if not more difficult, to read the particulars as assuming responsibility for errors in measurements alone. No such distinction is discernible in the terms of the disclaimer. By the same token, given the very substantial amounts involved in property transactions, it hardly makes sense to understand Jones Lang Lasalle as precluding any duty of care in respect of minor matters, but assuming responsibility for errors (however large or small in themselves) which could give rise to very extensive liability. There is one further feature which is difficult to accommodate if the plaintiff is correct, which was touched on in the judgment in McCullagh v. Lane Fox and Partners Ltd. On the assumption that a purchaser was induced to pay too much for premises and should now be compensated, then the natural source of that compensation is the vendor who, at least on this hypothesis, has been unjustly enriched in obtaining more than they should have for the premises. In a contractual claim, the plaintiff purchaser will be able to recover that amount from the vendor, and if the agent was responsible for the error, the vendor might be able to obtain indemnity in respect of any consequential costs. But if an independent duty of care arises in tort on the part of the agent, then payment of damages by the agent to the purchaser will leave the vendor with, on this hypothesis, an undeserved gain. This lack of congruence of remedy, if not fatal to the plaintiff’s case, is at least troubling and requires to be addressed.

47 I accept that, adopting a strict approach, it might be possible to argue that the reference to “every care” being taken is itself a form of representation that such care was taken which, it must be assumed, did not occur in this case. However, that is, I think, an unduly legalistic reading of the clause, designed to defeat it rather than to understand it in its context. It is necessary to read the disclaimer fairly and in its entirety. If read as not excluding, but rather positively accepting responsibility for the risk of error due to negligence, it becomes not merely surprising, but superfluous, since arguably such a duty would arise in the absence of a disclaimer. Again, it might be said, adopting the highly strict approach to exemption clauses, that the disclaimer here is apt to exclude a contractual liability for error without fault, but does not exclude liability for negligence. But such an interpretation is highly implausible. Why would a party, in framing a disclaimer, seek to exclude liability under a contract which it does not have, but not to exclude, indeed positively to embrace the only liability which might arise to a party with whom it did not have a contract controlling the terms of the relationship? Again, it might be said (although I do not think this was argued) that the fact that the disclaimer uses the passive voice might mean that it sought to exclude the contractual liability of the agent’s principal, in this case the vendor. Again, this is, however, highly implausible, particularly if it is read as excluding a potential contractual liability, which did not in fact arise, on the part of the vendor, but accepting direct liability on the part of the agent (and for which the agent obtains no payment from any party) for an error attributable to negligence. The provision asserting that every care has been taken cannot be taken out of context or divorced from the structure of the sentence in which it is placed. In my view, the most reasonable interpretation of the disclaimer, and thus the manner in which it would be understood at the time, was that while Jones Lang Lasalle asserted that they took every care in the preparation of the particulars and believed them to be correct, if they did not do so, and/or if the particulars were incorrect, they did not accept responsibility. If the detail of the particulars was important to a prospective purchaser, he or she should verify them independently or, if they did not, they would bear the risk of any inaccuracy.

48 The evidence here that parties did not routinely check measurements (although lenders apparently do require such detail) and that no one in this case came back to the vendors or to Jones Lang Lasalle to suggest that the measurements were wrong (which might suggest that none of the other prospective purchasers measured the premises) does not, in my view, lead to a conclusion that in this market, there was a general assumption that agents accepted responsibility for the accuracy of the particulars. These premises were themselves marketed for a development opportunity which was no doubt the primary factor in setting its value. There is no evidence that any other purchaser considered the premises to be a letting opportunity and still less that the figures were considered to be crucial to the value of the bid. Indeed, in that regard, if the letting value of the property determined its value on the market, it is difficult to understand how Jones Lang Lasalle’s initial advice was so far removed from the price ultimately achieved. All this evidence may provide one further insight in to the progress of the property market even in the early 2000s, but it cannot, in my view, go so far as to establish an assumption of responsibility by Jones Lang Lasalle or other agents of a duty of care in relation to particulars made generally available on the market without more.

A Broader Approach
49 On one reading of the judgment of the High Court, however, it can be said that the High Court took a broader approach which could have important consequences for the law of negligence generally. Rejecting an argument based on Caparo Industries Plc. v. Dickman [1990] 2 AC 605, and relying on the judgment of the Supreme Court in Wildgust & anor v Bank of Ireland & anor [2006] 1 IR 570, the High Court held that “[p]rima facie therefore, the relationship between the plaintiff and the defendant was sufficiently proximate to give rise to a “special relationship” of the kind identified by the Supreme Court (Geoghegan and Kearns JJ.) in Wildgust”. It had been argued on behalf of Jones Lang Lasalle that the disclaimer precluded the existence of a special relationship and was, furthermore, a justification for rejecting the existence of duty of care based on the third element in Caparo (and adopted in Glencar), namely that it was an element making it unfair, unjust and unreasonable to impose a duty of care. The High Court rejected this and, assuming a prima facie duty of care, posed the question:

      “It seems to me that the question for determination in relation to the ‘waiver’ is whether its presence within the brochure and its precise terms are together sufficient to exclude the defendant from liability to the plaintiff in respect of negligence by the defendant in the measurement of the floor area of the property and negligent misstatement on the part of the defendant in publishing the incorrect measurements of the floor area. On the evidence I do not believe that they are sufficient.”

50 On this reading, the judgment runs together a claim for a negligent act (of measurement or non-measurement) and negligent misstatement (contained in the particulars). The analysis then proceeds on the assumption that there exists a duty of care, and the question becomes whether the disclaimer is sufficient to exclude that duty of care. This is of course the analysis applicable to an exemption clause which seeks to limit a contractual or tortious liability. It is a short step from that analysis to the conclusion that the waiver clause here is insufficient. At the following paragraph, the High Court judge expressed himself in the following terms:

      “If the defendant wished to reserve to itself the right, (a) to publish within its sales brochure, precise measurements which were in fact grossly inaccurate and, (b) to relieve itself of liability to the category of persons to whom the brochure and its contents were directed, then there was an obligation upon the defendant to draw to the attention of the plaintiff and other prospective purchasers the fact that the seemingly precise measurements published were likely to be wholly unreliable and should not be relied upon in any circumstances.

      By including within its brochure an enigmatic sentence in small print claiming to have taken particular care in the preparation of all of the particulars within the brochure but advising prospective purchasers to ‘satisfy themselves as to the correctness of the information given’ the defendant failed to discharge that obligation.”

51 It is I think apparent that the judge did not seek to offer any interpretation of the disclaimer, but instead simply found it ineffective to exclude a prima facie duty of care. This, as already observed, is to apply the standard approach to contractual exemption clauses which seek to exclude a liability which otherwise exists, whether in contract or in tort, and therefore, the approach represents a significant (if unacknowledged) movement away from the analysis in Hedley Byrne v. Heller [1964] AC 465, where the disclaimer is considered simply as part of the evidence as to whether a duty of care arose in the first place. The approach in the High Court appears to be based upon a blurring of the distinction between liability for a negligent act and liability for a negligent statement which was identified in Hedley Byrne v. Heller and the succeeding case law, and in doing so, reliance on the decision of the Supreme Court in Wildgust.

52 I do not doubt that the resolution of standard claims for injuries and loss which are disposed of in civil courts on a daily basis, do not call for any careful consideration of legal analysis or precise language or reference to case law. If the function of this Court was simply to make some broad assessment of whether any particular disposition in such a case should be allowed to stand, then I would have no real difficulty with the result in this case. If it were to be reduced, as at times the submissions seem to suggest it should be, to a form of reverse beauty contest between a purchaser/investor making a bid for substantial property on the basis of a back-of-the-envelope calculation in reliance on information which he did not himself commission or pay for, and a professional firm which provided erroneous measurements, it might be a close call but I might favour the individual investor over the corporate firm, albeit without much enthusiasm. But I do not think the function of this Court can be reduced to the resolution of individual cases on a basis that can be plausibly considered fair, or at least not obviously unfair. In truth, if a plausible case could not be made for both sides in a case, the parties involved would rarely engage in costly litigation. If all this Court had to do was to make broad ad hoc conclusions on equally broad judgments made in individual cases in a trial court, then the jurisprudence in this area would quickly become little more than an exercise of unbounded discretion normally stigmatised as the antithesis of justice according to law. The case law in the area would rapidly become little more than that “codeless myriad of precedent, that wilderness of single instances” criticised by Tennyson. This is more than an objection that the law cannot be fitted in to some pleasing intellectual pattern. If the decisions of the appellate courts are only individualised determinations on the grounds of some general conception of fairness, then all cases would, in principle, have to be appealed since it would be impossible to predict in any given case the likely outcome, other than by a process of amateur psychological forecasting some distance removed from legal analysis.

53 But, as I conceive it, the function of this Court is, with the discipline, structure, illumination and focus provided by the individual case, to analyse the law in such a way as may permit issues to be resolved without the considerable cost in time and money involved in litigation and appeals in other cases. The results should not merely be certain and predictable, but also promote rational, efficient and fair behaviour. In my view, it is necessary, therefore, to look more rigorously at the analysis offered here.

54 First, I do not think that the difficulties in this case can be avoided by treating the case as one of a negligent act to which the general principle in Donoghue v. Stevenson applies. In many cases of negligent misstatement, it is possible to identify an antecedent, allegedly negligent act. Thus, the accountant who wrongly certifies a company’s accounts may have either failed to investigate the matter sufficiently, or have wrongly analysed the information available (Caparo Industries v. Dickman [1992] 2 A.C. 605, Candler v. Crane, Christmas & Co. [1951] 2 K.B. 164). The banker who wrongly states that a company is good for such debts as it may incur may have failed adequately to investigate its financial status, or misconstrued the information available. (Hedley Byrne v. Heller [1964] AC 465). It is, as Keane C.J. pointed out in Glencar, wrong to speak of somebody being negligent in the abstract. Negligence in law means a breach of an existing duty of care. Assuming for the moment, however, that the defendants in this case were careless in the way in which they measured (or indeed failed to measure) the premises, they did not owe any duty to prospective purchasers when they did so and did not cause them any loss as a result of that act, or failure to act, without more. Any duty, contractual or tortious, was owed at that point to the client. The question of a potential duty of a prospective purchaser, including the plaintiffs, and the question of any loss being incurred only arose when the product of the measurement exercise was included in the brochure as a statement and provided to prospective purchasers. This conclusion can, indeed, be tested by considering that if the statement had not been made and provided to prospective purchasers (most obviously by being contained in Jones Lang Lasalle’s brochure), it could not be said that any claim could arise on the part of the plaintiff, even if Jones Lang Lasalle had been grossly careless in the act of measurement. The case must be analysed, in my view, as a case of negligent misstatement.

55 I also consider that the argument, attributed in the judgment to the defendant, that the disclaimer was to be considered as addressing the so-called third limb of the test set out in Australia in Sutherland Shire, approved in the United Kingdom in Caparo Industries v. Dickman [1992] 2 A.C. 605 and adopted in this jurisdiction in Glencar Explorations p.l.c. v. Mayo County Council [2002] IR 84, i.e. whether it was just and reasonable to impose a duty of care, was unhelpful. Caparo did not involve any disclaimer. Indeed, if the auditor’s statement on the statutory accounts that they provided a true and fair view of the business of the company had contained a disclaimer (assuming that was legally possible), it is probable that the issue in Caparo would not have arisen at all. The question in Caparo was whether the very particular circumstances created in that case by the statutory obligation on a company to employ an auditor, and on that auditor to provide his or her opinion as to whether the accounts provided a true and fair view of the business of the company, could give rise to a duty of care to parties who invested in, or perhaps acquired a company in reliance on the financial picture presented by the accounts. The House of Lords considered that in the circumstances, although there was sufficient proximity, it would not be fair and reasonable to hold that auditors in such cases owed a duty of care to third parties with whom they had no contractual relationship. It may well be that some of the factors that were in the background in that analysis may also be relevant to the issue here. But here the question is whether, in the light, in particular, of the disclaimer, there was, in truth, sufficient proximity to give rise to a duty of care. It was the brochure which created the potential relationship between Jones Lang Lasalle and the plaintiff, and the question was, in the light of the terms of the brochure, whether such a relationship was created as to give rise to a duty of care so that Jones Lang Lasalle would be responsible to the plaintiff for any error in the particulars.

56 It is also fair, I think, to acknowledge that although this case cannot, in my view, be treated as one of liability for a negligent act, that that does not dispose of the argument based upon Wildgust. The plaintiff sought to put the case on a somewhat different basis. It was argued that Wildgust now permitted a court to approach a case of negligent misstatement on the same legal basis as any claim made in reliance on negligent acts, and in consequence, that the traditional issues arising in the area of negligent misstatement such as special relationship, assumption of responsibility, reliance etc. could be dispensed with, and the issue approached simply on the basis that the relationship gave rise to a duty of care, and whether the disclaimer successfully excluded any liability for breach of that duty. That would, of course, be a very large movement away from the law which was thought to have emerged from Hedley Byrne v. Heller [1964] AC 465 and those cases in this jurisdiction which followed it. However, this reading of Wildgust has received some impetus from some of the commentary on the case and it is accordingly necessary to consider that decision in some greater detail.

57 The facts in Wildgust were very complex, unusual and far removed from the situation in this case. Thus, the case might only be relevant here if it is understood as stating some principle (or refinement of principle) of general application. The first named plaintiff, Mr. Wildgust, was the principal of a business (“the company”) which was the second named plaintiff, and which borrowed money from bankers, Hill Samuels (“HS”). Security for that loan was a personal guarantee from both Mr. Wildgust and his wife which was, in turn, supported by life insurance policies taken out with Norwich Union (“the insurers”) at the behest of the bank on the lives of Mr. Wildgust and his wife, and which were mortgaged to the bankers. This is, of course, a common arrangement. Premiums were paid by direct debit by the company’s bank account with Bank of Ireland. There was thus a reasonably complex web of legal relationships between the plaintiff, his wife, the company, the bankers (Bank of Ireland) who made the direct payment to the insurers Norwich Union, and finally the bankers (HS), who had advanced the loan, which was secured by the personal guarantees, the same themselves supported by the insurance polices.

58 It appears that due to a problem on one occasion with the direct debit, the premium was not paid. The insurers notified the bank (HS) (but neither of the plaintiffs nor Mrs. Wildgust) that the premium was unpaid, and if left unpaid that the policy would lapse. This was particularly relevant because Mrs. Wildgust was unfortunately in poor health, having been diagnosed with cancer. A manager in HS contacted Mr. Wildgust, who assured him that the premium had been paid by bank draft. In fact, that draft had been returned (properly it seems) to the second named plaintiff company as an excess payment. Commendably, it appears that HS was still concerned, and the manager in the bank contacted the insurance company and was assured (it appears bona fide but erroneously) that the premium had indeed been paid and the policy was in force. This, indeed, was the same mistake under which Mr. Wildgust was labouring. Accordingly, the bank manager took no further steps, and neither sought to ensure that the premium was paid by Mr. Wildgust or the company, nor to exercise the right that the bank had to make premium payments to preserve the policy. If HS had been informed that the premium was unpaid, they would have paid the premium to keep the policy alive. The information that the policy was believed by the insurers to be in full force was not communicated to Mr. Wildgust. In due course, unfortunately, his wife died, but the insurers refused to pay on the policy, contending that it had lapsed by reason of the non-payment of the premium. Proceedings were commenced by Mr. Wildgust and the company against a number of defendants, but ultimately were reduced to a claim against the insurers. The initial proceedings were somewhat confused, and indeed the claim in negligent misstatement was only added after a successful appeal to the Supreme Court which permitted the amendment of the claim. When that case proceeded in the High Court, the plaintiff’s case against the insurers was dismissed on the grounds that while the insurers had negligently assured HS that the policy was in force and as a result of which HS had neither sought to have a premium paid nor paid it themselves, nevertheless the statement made by the insurers to HS had not been communicated to the plaintiffs, and therefore it could not be said that the plaintiff, Mr. Wildgust, and his company had relied on the negligent statement. On appeal to the Supreme Court, (Denham, Geoghegan and Kearns JJ.) allowed the plaintiff’s appeal. Lengthy and considered judgments were delivered by Geoghegan and Kearns JJ.

59 First, I should say that I have little doubt that the result in Wildgust was correct and just. It is also apparent, however, that the legal analysis was complicated. There may have been many potential routes which would have allowed the plaintiffs to recover against the insurance company, although some of them may have required some degree of novelty. It may be correct to analyse the case as one of negligent misstatement, and it may be that in future years, it will be possible to place this case in its proper place in that jurisprudence, whether as an outlier representing a very specific finding depending on particular and unusual facts, or as an important straw in the wind supporting a new and broader approach, or something in between. But I think it is clear at this stage that Wildgust cannot be taken as itself justifying a single unified approach to all cases of negligence, whether of negligent act or misstatement, and jettisoning traditional considerations such as proximity, and undertaking of responsibility in such a way that this case can be approached as one in which there is a duty of care and the only relevant consideration is whether liability was successfully excluded by the terms of an exemption clause.

60 First, and most obviously, Wildgust was not treated by the Court as representing a substantial revision of the general law of negligence. Indeed, if the case had been considered to call for such an exercise, it would not have been heard by a court of three, and if the Court considered that substantial issues of principle arose, the case could have been adjourned to be heard by a larger court. In fact, as Geoghegan J. observed, “the facts of the case were most unusual and there was no reported case sufficiently analogous to be of assistance”. The case was dependent on those unusual facts and understood by the Court to be, at most, a modest extension of the existing law to take account of the difficulties posed by the almost unique set of circumstances posed in that case. Geoghegan J. did observe that concepts running through the English case law relating to negligent misstatement and representation such as reliance, assumption of risk, special relationship, relationship to contract, or even, as he described it, the “will- o’- the- wisp” concept of “proximity” might not be all that necessary. This observation was immediately followed, however, by the statement that he was prepared to assume for the purposes of the case “that the law of negligent misstatements is a separate code from the law of negligent acts”. Furthermore, both of the judgments carefully analysed and considered the leading cases such as Hedley Byrne v. Heller and certainly do not suggest that the analysis in that case has been entirely discarded.

61 The central issue raised in Wildgust, and the issue for which it is authority, is on the question of reliance. That was the issue upon which the plaintiffs failed in the High Court and succeeded in the Supreme Court. The decision of the Supreme Court was, in effect, that in the particular and unusual circumstances of the case, the plaintiff did not have to prove personal reliance on the assurance given by the insurers to the bank that the premiums had been paid and the policy was in force. Indeed another way of looking at that case is perhaps that given the close relationship between the plaintiffs and the bank in relation to the insurance policy, the plaintiffs had a community of interest with the bank and were entitled to rely upon the representation made to the bank, and the bank’s reliance on it. But however viewed, it is clear that the case is only authority for the proposition that it is not necessary to show individual reliance by the plaintiffs in a particular situation like that of Mr. Wildgust. Indeed, the case is not authority for the proposition that reliance is not necessary. Instead, it established that the plaintiffs in that situation were entitled to rely on the reliance placed by HS on the assurance given. It is not authority for the proposition that cases of negligent misstatement do not require a consideration of whether there has been an assumption of risk on the part of the maker of a statement, or more broadly whether the circumstances are such as to give rise to a duty of care.

62 Even if Wildgust was taken at its broadest as suggesting, perhaps, that by analogy with the decision in that case it might, in any given case, be possible to dispense with a requirement of an assumption of responsibility that, in my judgment, would still not avail the plaintiffs in this case. The logic of Geoghegan J.’s judgment was that those tests were essential control mechanisms necessary to limit the scope of liability in cases where a statement was capable of general dissemination, giving rise to the possibility of indeterminate liability of an indeterminate amount to an indeterminate group, as in Ultramares v. Touche (1931) 255 NY 170. In Wildgust, Geoghegan J. found there was no need for such a control mechanism because the particular circumstances of the case meant that any statement was not generally disseminated. Instead both the individuals affected by the statement (arguably a single individual, the holder of the insurance policy, albeit that the interest was here divided between the individual and the lender to whom the policy was assigned) and the amount of financial exposure if an error made (the amount of the policy) were known (or capable of being known) and limited, at the time it was made. But the same cannot be said here. The statement relied upon by the plaintiff here was made in a brochure which was generally available. There are in truth a number of potential claims arising from this type of error. In addition to a purchaser like Mr. Walsh who buys property and finds it smaller than he claims he expected, it is possible to conceive of claims by a bidder who did not purchase the property because they thought it too big, or the disappointed developer underbidder who would have been successful if Mr Walsh had not paid “too much” for the premises. Both these claimants could claim that they lost a valuable property which increased in value dramatically in the subsequent years, particularly if the test is merely proximity forseeability and damage. It would be difficult to assess loss in such cases. These considerations are similar to those which have hitherto justified the limitations on liability for misstatement and are in sharp contrast to the considerations which influenced the Court in Wildgust. Furthermore, there was, in Wildgust, no disclaimer or waiver of liability, and thus that issue, which is central to this case, did not arise. In those circumstances, I do not think that Wildgust provides justification for adopting an approach to this case, which would involve a dramatic departure from the law of negligent misstatement, which has existed since it was first identified in Hedley Byrne v. Heller and approved in this jurisdiction in Securities Trust v. Moore and Bank of Ireland v. Smith. If that step is to be taken it would require more elaborate consideration (and by a full court) than was involved in this case or, indeed, in Wildgust. Accordingly, since in my view, on the established test, the plaintiff should not have succeeded, I would allow the defendant’s appeal.

63 Finally, and while not in any sense dispositive, it seems to me this is an outcome which provides clarity and promotes efficiency. This case is, ultimately, about the allocation of risk. At first blush, it might appear reasonable that the agent uttering the statement, should bear the risk of damage flowing from error, but when put in context this is less clear. Everyone involved in this transaction is selling or buying something. The provision of information or advice which can be relied on (and sued on if incorrect) has a value, sometimes substantial. Why should one party, be able to acquire this information backed by the resources of a substantial firm, for nothing? If the agent is unable to limit liability (or be confident that it can do so, which if a disclaimer is to be assessed with the severity of an exemption clause, it cannot be), it must seek to price its services at a sufficient price to cover the risk. Given the potential exposure to damages in property transactions and the costs involved in litigation, this is a substantial cost that must be built into the price either directly, or indirectly through insurance. This means that the cost is spread across the agent, its client, and all other purchasers. But those purchasers may have no interest in accuracy of information as to area, and will not be relying on the brochure in other respects, such as title or tenure. To these participants this would be an additional and unnecessary cost. It is only a special purchaser, who has a particular interest in the square footage for whom the information has value, and there is no reason why that purchaser should be able to avoid the cost of being able to rely on that information, and spread it across other market participants. It is reasonable in my view, that if a purchaser has a particular interest in reliance on the information in the brochure, the starting point should be that he should contract for that, either with the vendor, the vendor’s agent, or his own expert, and otherwise bear the risk of reliance in error, unless the agent has, and for whatever reason, clearly assumed the risk. This is, as I understand, the essential approach to claims of negligent misstatement in cases such as this and is consistent with the outcome of those cases, whether the claims succeed or fail. In my view, it cannot be said from the circumstances of this case (which here resolve themselves on the terms of the brochure), that the agent assumed that responsibility to this plaintiff.


Judgment of Ms. Justice Laffoy delivered on the 1st day of June, 2017


Introduction
1. For just over half a century, starting with the decision of the House of Lords in Hedley Byrne & Co. v. Heller & Partners Limited
[1964] AC 465 (“Hedley Byrne”), the law on liability in tort for negligent misstatement has been evolving in the United Kingdom. In general, the developments in the United Kingdom have been followed in this jurisdiction. However, a very fundamental question which arises on this appeal, namely, if, in what circumstances and to what extent a disclaimer of responsibility absolves a defendant supplier of information from liability for economic loss incurred by a plaintiff recipient of the information due to what would otherwise be negligent misstatement on the part of the defendant, has not previously been determined by this Court. In considering that question in the factual context of this appeal, this judgment will address:

      (a) the essential facts which underlie the issues which have to be determined;

      (b) the case as pleaded by the respondent on the appeal ("Mr. Walsh"), who was the plaintiff in the High Court, and the defence put forward by the appellant on the appeal ("JLL"), which was the defendant in the High Court;

      (c) the judgment of the High Court delivered by Quirke J. ("the trial judge") on 24th January, 2007 (which is reported at [2009] 4 IR 401);

      (d) some features of the appeal;

      (e) analysis of the evolution of the relevant legal principles applicable by reference to the jurisprudence of the United Kingdom and the extent of the recognition and application of that jurisprudence by this Court, leading to the identification of the relevant legal principles in this jurisdiction; and

      (f) discussion and conclusions as to the application of the relevant legal principles to the relevant facts.


Factual background in outline
2. JLL acted as estate agent for Tucks Limited (“the Vendor”) in the sale of a commercial property by private treaty in the year 2000. The commercial property, which is hereinafter referred to as “the Property”, was situate at Upper Gardiner Street in the north inner city area of Dublin. Mr. Walsh entered into a contract to purchase the Property from the Vendor on 9th August, 2000 at the price of IR£2,342,000 and the sale was completed by a conveyance dated 28th September, 2000.

3. The evidence of Mr. Walsh at the hearing in the High Court was that he was in the management training and property business and that he had been engaged in the property business for twenty years. At the time, he owned premises in the north inner city area of Dublin, on Cumberland Street, which he was considering selling. He saw the Property advertised in a newspaper and he also received a call from Eamonn Maguire ("Mr. Maguire") of Palmer McCormack, a firm of chartered surveyors, who was aware that he needed property in the north inner city area. Mr. Walsh, accompanied by Mr. Maguire, whom he testified was not acting as his advisor, went to view the Property on 13th July, 2000. Mr. Walsh was quite interested in the Property and he returned on the 14th July, 2000 to view it again. On that occasion, Woody O’Neill ("Mr. O’Neill"), a representative of JLL gave him a sales brochure, the contents of which will be outlined in detail later. On 21st July, 2000 Mr. Walsh received a telephone call from Mr. O’Neill who stated that there was substantial interest in the Property and that tenders had to be submitted by noon on 28th July, 2000. Mr. Walsh did submit a handwritten tender before noon on 28th July, 2000. However, before so doing he organised that what he described as a “condition survey”, that is to say, a survey as to the condition of the Property, be carried out by a chartered surveyor, Val O’Brien ("Mr. O’Brien"). The Property was surveyed by Mr. O’Brien on 27th July, 2000 and he gave a verbal report, not a written report, to Mr. Walsh.

4. As regards the amount tendered by Mr. Walsh, his evidence to the High Court was that his “calculations were made on the back of an envelope”, which one must interpret metaphorically rather than literally. The component of his calculations which is relevant for present purposes was based on the assumption that there would be available for letting, at rent estimated at IR£20 per square foot, approximately 10,000 square feet on the first floor of the Property. The source of the figure of approximately 10,000 square feet was JLL’s sales brochure.

5. Mr. Walsh’s tender was accepted by the Vendor and, as recorded above, the contract was subsequently executed and the sale was completed in September 2000.

6. As is outlined in the judgment of the High Court (at paras. 25 and 26 in the reported judgment), on Mr. Walsh’s instructions, Palmer McCormack provided a report in relation to the Property for Mr. Walsh’s banker, ACC Bank, which was dated 15th August, 2000 and which stated that the Property “comprises approximately 23,000 square feet gross on a site of almost a 1/3 of an acre”. It was stated in that report that Palmer McCormack had not measured the building and had taken the floor areas from JLL’s sales brochure. The report also stated that the “office accommodation at the first level comprises approximately 10,463 square feet gross . . .”. ACC Bank made no inquiries as to the accuracy of the measurements and did not itself procure a survey in relation to the Property.

7. JLL’s sales brochure was a two-page document. At the top of each page, the Property was described as “Industrial Property”. On the first page, over a colour photograph of the Property, it was stated:

      “Excellent Redevelopment Opportunity”.
The address was then given and there followed the following particulars:
      “2,142m2 (23,057 sq ft)

      Site Area 0.13 Hectares (0.31 Acres)”

The Property was then described as: “Excellent city location close to numerous commercial and institutional occupiers”, with examples being given. It was also stated that it was “Zoned Z8”. At the bottom of the first page in very small print was a disclaimer in the following terms:
      “Whilst every care has been taken in the preparation of these particulars, and they are believed to be correct, they are not warranted and intending purchasers/lessees should satisfy themselves as to the correctness of the information given.”
8. On the second page there was a map indicating the location of the Property, which was described as a high profile two storey corner property and as comprising “a mixture of retail and showroom, storage and office accommodation over two floors”. Further particulars of the accommodation were then set out as follows:
      “Accommodation

      M2 Sq Ft

      Ground Floor 1,170 12,594

      First Floor 972 10,463

      Total 2,142 23,057

      Site Area 0.13 Hectares (0.31 Acres)”

There followed a further reference to “Opportunity”, which stated that the Property provided “an excellent redevelopment opportunity and, subject to the necessary planning permission, would be ideally suitable for residential, commercial or mixed scheme”. It was stated that vacant possession would be provided in Autumn 2000.

9. After the purchase was completed, in the context of negotiations in relation to letting the first floor of the Property to the Office of the Public Works, Mr. Walsh instructed Mr. O’Brien to measure the floor area of the Property. As is recorded in the judgment of the High Court (at para. 28), by letter dated 20th March, 2001 Mr. O’Brien advised Mr. Walsh that the total floor area of the Property was 21,248 square feet (8,573.5 square feet at first floor level and 12,674.6 square feet at ground floor level). In other words, in the brochure, JLL had overstated the total floor area by 1,809 square feet, equivalent to approximately 8% of the total floor area. The area of the first floor had been overstated by 1,809 square feet, being approximately 18% of the first floor area. While there was some discussion on the hearing of the appeal, by reference to documentation which had been discovered, as to how the mistake in the measurements of the internal areas and the inclusion of the erroneous measurements in the sales brochure had occurred, in reality, aside from reliance on the disclaimer, no case has been made on behalf of JLL that no fault lies with JLL for that mistake or the inclusion of the erroneous measurements in the sales brochure. Having said that, the proven facts merely show that JLL produced the sales brochure, which contained information in relation to the internal floor areas of the Property which was incorrect, and furnished it to Mr. Walsh as a potential purchaser. There is not any other evidence of action or activity on the part of JLL, which Mr. Walsh could assert amounts to negligence, as distinct from negligent misstatement.

10. Mr. Walsh initiated the High Court plenary proceedings the subject of this appeal against the appellant on 11th October, 2001 (High Court Record No. 2001 No. 15154P) claiming damages for negligence and negligent misstatement on the part of JLL. He was successful in the High Court and was awarded damages in the sum of €350,000 against JLL.


The case as pleaded
11. The basis of the claim of Mr. Walsh against JLL is set out succinctly and with clarity in the statement of claim. It is asserted that JLL was under a duty of care to Mr. Walsh in preparing and making available to him information and particulars in relation to the Property, in particular, to ensure that the information and particulars so provided would be accurate and that all reasonable skill and care would be used by JLL in furnishing such information and particulars. It is asserted that JLL knew or ought to have known that Mr. Walsh would rely on the contents of the brochure furnished to him by JLL and that JLL owed to Mr. Walsh a duty of care in respect of the brochure. That JLL expressly represented to Mr. Walsh that it had taken every care in the preparation of the particulars in the brochure and that by reason thereof JLL had assumed responsibility to Mr. Walsh for the contents of the brochure and was under a duty of care to ensure its accuracy and to ensure that every care had been taken in its preparation is pleaded in the statement of claim. Following reference to the errors in the brochure in relation to the floor area, it is asserted that JLL “was guilty of negligence and negligent misstatement”. Particulars of breach of duty and negligence, including negligent misstatement, are itemised, which, in general, assert alleged failure to take reasonable care in relation to the preparation and contents of the brochure. The claim is represented as a claim for “damages for negligence and negligent misstatement”.

12. JLL in its defence traverses all of the matters pleaded in the statement of claim or puts Mr. Walsh on proof thereof. However, it is pleaded by way of defence that the brochure clearly stated that the particulars contained therein were not warranted and that any intending purchasers should satisfy themselves as to the correctness of the information given. Further it is expressly asserted that there was never any duty of care arising as between JLL and Mr. Walsh sufficient to found any cause of action in negligence or in negligent misstatement. That JLL assumed no responsibility for any information upon which Mr. Walsh places reliance is also pleaded, as is that any loss or damage suffered by Mr. Walsh was caused solely, or alternatively contributed to, “by reason of negligence or contributory negligence” on the part of Mr. Walsh in failing to carry out a survey of the Property before entering into the contract to purchase the Property.

13. In the light of what is stated earlier (at the end of para. 9) as to the proven facts and evidence, and having regard to Mr. Walsh’s claim as pleaded as outlined, in my view, the claim for negligence must be regarded as a claim for negligent misstatement. Accordingly, the basis on which I propose to address the issues on this appeal is by reference to the law on negligent misstatement as distinct from general negligence.


The judgment of the High Court
14. Before outlining the relevant findings in the judgment, it is appropriate to record that what is before this Court is counsel’s agreed note of the evidence adduced in the High Court, not a transcript. The provision in small print at the foot of the first page of the brochure is variously described in the agreed note as the “waiver” or the “disclaimer”. In my view, “disclaimer” is a more appropriate description and it is the description I propose to use.

15. The evidence of Mr. Walsh and of two chartered surveyors who testified is mentioned in the judgment, as well as the evidence of Nigel Healy ("Mr. Healy"), being a director of JLL and a chartered surveyor. One of the chartered surveyors, Barry Smith ("Mr. Smith"), who was described in the agreed note as a chartered surveyor and a partner in Messrs. deVere White Smith and as having been in the valuations and property business for over forty years, testified on behalf of Mr. Walsh. The other, Peter Rowan ("Mr. Rowan"), who was described as the CEO of the Dublin office of Lambert Smith Hampton, which specialises in commercial property, testified on behalf of JLL. While the evidence of each of those witnesses was partly directed to quantification of the loss alleged to have been incurred by Mr. Walsh by reason of the actual internal floor area of the Property being less than had been stated in the brochure, their evidence also addressed the issue as to whether JLL had liability to Mr. Walsh for negligent misstatement.

16. In briefly outlining the evidence of Mr. Walsh in the judgment (at para. 30), the trial judge stated:

      “He said that purchasers of commercial property believed that ‘waivers’ of the type relied upon by [JLL] were to be found in most auctioneers’ brochures and were intended to safeguard auctioneers from liability in respect of ‘minor’ miscalculations.”
17. It was also recorded in the judgment (at para. 32) that Mr. Smith stated in evidence that it would be most unusual for investors to measure properties before offering to purchase and that he had never encountered circumstances where that had occurred. Mr. Smith said that most auctioneers had some form of disclaimer on their brochures and that these disclaimers comprised “. . . an effort to protect the agent from relatively minor errors”. Mr. Smith also said that he would expect auctioneers’ measurements to be correct and he would expect purchasers to rely on the measurements. As regards Mr. Rowan’s evidence, it was recorded (at para. 33) that he stated that a prudent investor or intending purchaser should carry out a detailed inspection and measure all floor areas before purchasing a property. He said that it would not be normal or prudent and that it would not be considered acceptable to rely solely on the measurements set out in sales brochures prepared by a vendor’s agent. As was pointed out by counsel for JLL, the judgment discloses that contradictory evidence was given by the two chartered surveyors who testified.

18. It was recorded (at para. 34) that Mr. Healy described the disclaimer as a form of advice to a purchaser to carry out inspections and measurements as a form of “due diligence” and, further, that Mr. Healy said that the measurements in the brochure were as a “general guide” to prospective purchasers.

19. The first issue identified by the trial judge in his judgment was whether JLL owed a duty of care to the plaintiff to ensure that the calculation of the floor area of the Property which JLL published in its sales brochure was accurate. In addressing that question, the trial judge referred to a number of authorities which will be considered in detail later, including, inter alia, the following:

        (a) Hedley Byrne;

        (b) Smith v. Eric S. Bush [1990] 1 AC 831 (“Smith”);

        (c) Caparo Industries Plc v. Dickman [1990] 2 AC 605 (“Caparo”);

        (d) McCullagh v. Lane Fox & Partners Ltd. [1996] PNLR 205 (“McCullagh”);

        (e) Glencar Exploration Plc v. Mayo County Council (No. 2) [2002] 1 IR 84 (“Glencar”); and

        (f) Wildgust v. Bank of Ireland [2006] 1 IR 570 (“Wildgust”).

20. The trial judge then set out certain conclusions (at paras. 45 to 49): that the information contained in JLL’s brochure was directed towards a very specific and identifiable category of persons, namely, potential purchasers; that it was to be expected that the potential purchasers would rely upon information contained within the brochure when deciding whether or not to offer to purchase; and that, prima facie, the relationship between Mr. Walsh and JLL was sufficiently proximate to give rise to a “special relationship” of the kind identified in Wildgust.

21. In addressing the effect of the disclaimer published at the foot of the first page of the brochure, the trial judge noted (at para. 50) that it had been argued on behalf of JLL that the disclaimer precluded the existence of the “special relationship” contended for on behalf of Mr. Walsh, it having been argued on behalf of JLL that the existence of the disclaimer introduced into the case the “third element” recognised in Caparo, making it unfair, unjust and unreasonable for the High Court to impose upon JLL a duty of the kind contended for on behalf of Mr. Walsh. The trial judge rejected JLL’s argument, stating (at para. 51):

      “The information within the brochure was published by [JLL] for the express purpose of influencing a limited number of identifiable persons. The publication of the ‘disclaimer’ was immaterial to that fact. [Mr. Walsh] was a person to whom the brochure was expressly directed and he was influenced by the information published within the brochure. I am satisfied on the evidence that he relied upon the measurements within the brochure when calculating his precise bid or ‘tender’ for the purchase of the property.”
22. The trial judge then (at para. 52) identified the question for determination in relation to the “waiver” as whether its presence within the brochure and its precise terms are together sufficient to exclude JLL from liability to Mr. Walsh in respect of negligence by JLL in the measurement of the floor area of the Property and negligent misstatement on the part of JLL in publishing incorrect measurements of the floor area. He held that, on the evidence, it was not sufficient. He stated (at para. 53 et seq.) that he accepted the evidence of Mr. Walsh and the chartered surveyors that it is not, and has not in the past been, the practice for prospective purchasers of commercial property in the Dublin area to measure the floor areas of properties before offering to purchase. By his reference to "the chartered surveyors" it is inferred that the trial judge was referring to the chartered surveyors called as witnesses by Mr. Walsh, namely Mr. O'Brien and Mr. Rooney. He stated (at para. 54) that he also accepted the evidence of "the chartered surveyors" that the “waiver” and other similar “waivers” published by reputable auctioneers are, and have in the past been, regarded by potential purchasers as relating “to relatively minor measurement errors”. While he accepted also (at para. 55) the evidence adduced on behalf of JLL, that is to say, the evidence of Mr. Rowan and Mr. Healy, that prudent purchasers should, where possible, measure floor areas and carry out detailed inspections before purchasing properties, he was satisfied, on the evidence, that, where detailed and precise measurements of commercial properties are provided within the brochures of experienced and reputable auctioneers, it is the practice for prospective purchasers to rely on the accuracy of those measurements, subject to potential minor miscalculations.

23. Having commented (at para. 59) that it was difficult to accept that “every care has been taken in the preparation of these particulars”, because the floor area was overstated to a degree which was seriously misleading to prospective purchasers, the trial judge went on to reject the argument made on behalf of JLL that the provision in the disclaimer that the particulars “are not warranted and intending purchasers/lessees should satisfy themselves as to the correctness of the information given” was sufficient to relieve JLL of liability in the circumstances of the case. Having identified the duty of care which Mr. Walsh contended was owed to him by JLL as being to ensure that the information, which it published in the brochure and provided for the alleged benefit of a limited category of persons (including Mr. Walsh), was reasonably accurate in the circumstances, the trial judge went on to say (at para. 63):

      “If [JLL] wished to reserve to itself the right (a) to publish within its sales brochure, precise measurements which were in fact grossly inaccurate and (b) to relieve itself of liability to the category of persons to whom the brochure and its contents were directed, then there was an obligation upon [JLL] to draw to the attention of [Mr. Walsh] and other prospective purchasers the fact that the seemingly precise measurements published were likely to be wholly unreliable and should not be relied upon in any circumstances.”
The trial judge concluded (at para. 64) that JLL failed to discharge that obligation by including within the brochure “an enigmatic sentence in small print”.

24. Referring again to the “evidence of the practice adopted by buyers and sellers of commercial property in Dublin at the relevant time”, the trial judge stated (at para. 65) that JLL’s “disclaimer” was a quite inadequate means of notifying prospective purchasers that the seemingly precise measurements of the floor areas so prominently published within the sales brochures were wholly unreliable. It followed, he stated (at para. 66), that the “waiver” was not effective to relieve the appellant in respect of negligence and negligent misstatement of the type contended for on behalf of Mr. Walsh.

25. The trial judge then went on to find on the facts that the loss and damage claimed on behalf of Mr. Walsh was a loss which was reasonably foreseeable by JLL, pointing to a number of facts: that the total rental income recoverable from commercial property will often be the principal factor in the calculation of value; that the floor area of the premises is an important factor in establishing the total rental income from the property; that JLL knew, or ought to have known, that Mr. Walsh would estimate the value of the Property, and, accordingly, the amount which he was prepared to bid for the Property, with particular reference to the rental income recoverable from the Property; that an overstatement of the floor area of the Property would give rise to an inflated estimate of the rental income recoverable from the Property and a corresponding inflation in the estimated value of the Property; and that, if the Property was purchased upon an overestimate of its value and its potential rental income, the loss would be sustained by the successful purchaser.

26. The findings of the trial judge were summarised as follows (at para. 72):

      “It follows that loss and damage to [Mr. Walsh] in this case was reasonably foreseeable by [JLL]. Having found, as I have that (a) the relationship between [Mr. Walsh] and [JLL] was sufficiently proximate to give rise to a ‘special relationship’ of the kind identified in Wildgust . . . and (b) that the loss allegedly sustained by [Mr. Walsh] was reasonably foreseeable in the circumstances and (c) that the imposition upon [JLL] of such a duty is, in the circumstances not unfair, unjust or unreasonable, it follows that I am satisfied on the facts of this case that [JLL] owed a duty of care to [Mr. Walsh] to ensure that the calculation of the floor area of the property in (sic) which [JLL] published in its sales brochure was accurate.”
The trial judge then stated that, since it had been conclusively established by way of unchallenged evidence that the area of the first floor of the Property was overstated by more 1,800 square feet, it followed that JLL was in breach of its duty to Mr. Walsh.

27. The issue whether there was contributory negligence on the part of Mr. Walsh in failing to measure the Property was then considered. Once again the trial judge referred to the evidence adduced on behalf of Mr. Walsh that it is not, and has not in the past been, the practice of prospective purchasers of commercial property in Dublin to measure the floor areas of property before offering to purchase and on that basis he did not find that Mr. Walsh was guilty of negligence in failing to carry out a survey prior to his entry into the contract. Further, (at para. 79), on a point with which JLL has specifically taken issue with on the appeal, he stated that “no evidence has been adduced in these proceedings to support the contention that an inspection or survey should have been carried out in order to confirm the precise measurements within the brochure”. On that basis he was not satisfied that any contributory negligence on the part of Mr. Walsh had been established by way of evidence in the proceedings.

28. Finally, the trial judge quantified the damages for which he found JLL liable to Mr. Walsh at €350,000.

29. The order of the Court dated 7th February, 2007 and perfected on 12th February, 2007 reflected the judgment, in that it stated that the Court found that JLL was negligent and that there was no contributory negligence on the part of Mr. Walsh, and that the Court assessed damages in the sum of €350,000.00 and ordered that Mr. Walsh recover that sum from JLL. An order for costs was also made against JLL in favour of Mr. Walsh.


The appeal
30. In broad outline, JLL’s appeal is grounded on assertions that, in making the various determinations outlined in his judgment, which led to the findings that JLL was in breach of its duty of care to Mr. Walsh, but that Mr. Walsh was not guilty of negligence or was not guilty of any contributory negligence, and, on that basis, in awarding damages to Mr. Walsh, the trial judge had erred both in fact and in law. JLL has not raised any ground of appeal in relation to the quantification of the damages awarded by the trial judge to Mr. Walsh, so that this Court is concerned only with the issue of liability. However, on the issue of liability both parties have attached considerable importance to the factual basis of the decision of the trial judge.

31. In their written submissions, counsel for Mr. Walsh place considerable emphasis on the factual matrix. First, they outline certain relevant undisputed facts, one of which is at the heart of the controversy between the parties, namely, that the floor area of the first floor of the Property is incorrectly stated in the particulars in the brochure. Secondly, there are listed no less than a further eighteen findings of fact made by the trial judge in his judgment. Thirdly, issue is taken in relation to what are characterised as erroneous factual assertions made by counsel for JLL in their submissions and no less than thirteen such assertions are itemised. Predictably, counsel for Mr. Walsh emphasise the function of this Court in relation to findings of fact made at first instance, referring to the principles set out in the judgment of McCarthy J. in Hay v. O’Grady [1992] 1 I.R. 210, and, understandably, underlining the second principle to the following effect (at p. 217):-

      “If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.”
Obviously, this Court’s limited function in relation to findings of fact is a factor of which one is acutely conscious.

32. On the other hand, counsel for JLL have raised issues in their submissions in relation to quite a number of factual matters, including findings of fact made by the trial judge, the correctness of which they challenge, on the basis that some inferences leading to conclusions on matters of fact are incorrect and some of the evidence before the High Court was not sufficiently considered by the trial judge. A few examples will suffice for present purposes. First, the final ground of appeal put forward in the notice of appeal is that the trial judge erred in fact and in law in making the finding (at para. 79) referred to earlier that “no evidence has been adduced in these proceedings to support the contention that such an inspection or survey should have been carried out in order to confirm the precise measurements contained within the brochure”, notwithstanding the earlier statement (at para. 33) to the effect that Mr. Rowan “stated in evidence . . . that a prudent investor or intending purchaser should carry out a detailed inspection and measure all floor areas before purchasing a property”, and that “it would be normal or prudent and would not be considered acceptable practice to rely solely on the measurements set out in the sales brochures prepared by a vendor’s agent”, thereby pointing to the inconsistency between the two statements. Secondly, not only do counsel for JLL raise questions about the findings of fact made by the trial judge, but they also contradict assertions made by counsel for Mr. Walsh in their submissions in relation to the findings. For instance, an assertion by counsel for Mr. Walsh that there was a finding of fact that the Property would have been difficult for prospective purchasers to have measured is contradicted by counsel for JLL, who suggest that there was no such finding, and, in any event, there was contradictory evidence on the point. Finally, by way of example, counsel for JLL submit that the trial judge erred in fact and in law in holding that the disclaimer or similar disclaimers “have in the past been regarded by potential purchasers as relating to relatively minor measurement errors”.

33. Having mentioned some of the factual controversies which have arisen between the parties on the appeal, I now propose considering the relevant legal principles as they have evolved up to the present time with, inter alia, the objective of assessing to what extent those controversies as to the findings of the trial judge are relevant to the determination of the core issue which falls to be determined on the appeal. That issue, in my view, is the effect, if any, of the disclaimer in the sales brochure on JLL’s liability to Mr. Walsh for the errors in the brochure. If they are not relevant, the factual controversies do not have to be considered further.


Analysis of evolution of relevant legal principles and current law on negligent misstatement
34. The structure of the analysis which follows is to use Hedley Byrne as the starting point and thereafter to address in chronological order the various authorities relied on by the parties, ending with Wildgust.

Hedley Byrne

35. As was pointed out by Keane C.J. in Glencar (at p. 134), a major qualification of the principle that no action for negligence lay in respect of purely economic loss was established in Hedley Byrne in the case of pecuniary loss caused by a negligent misstatement. However, for present purposes, the significance of the decision in Hedley Byrne is the manner in which Law Lords addressed an issue that arose in relation to a disclaimer of responsibility. There, the respondent, Heller & Partners Ltd, a merchant bank, received an inquiry by telephone from another bank, which wanted to know in confidence and without responsibility on the part of the respondent the respectability and standing of one of its customers. Some months later the bank wrote to the respondent asking for its opinion in confidence as to the respectability and standing of the customer and whether it considered the customer trustworthy in the way of business to the extent of £100,000.00 per annum. The response of the respondent was headed “CONFIDENTIAL” and was expressed to be “For your private use and without responsibility on the part of the bank or its officials”. The recipient bank communicated the replies to its customer, the appellant, which relied on the statements in the response and as a result lost over £17,000.00 when the customer of the respondent went into liquidation. The appellant’s action for damages for negligent misstatement failed.

36. The five Law Lords took a similar view on the question of liability. Lord Reid, in a passage (at p. 492) relied on by counsel for JLL in this case, identified the question as “whether an undertaking to assume a duty to take care can be inferred”. He found that it was clear that the respondent never undertook any duty to exercise care in giving the replies and the appellant could not succeed unless there was such a duty. Lord Devlin found that there was a “general disclaimer of responsibility” which appeared to him to be conclusive. He agreed with Lord Reid and he stated (at p.533):-

      “A man cannot be said voluntarily to be undertaking a responsibility if at the very moment when he is said to be accepting it he declares that in fact he is not. The problem of reconciling words of exemption with the existence of a duty arises only when a party is claiming exemption from a responsibility which he has already undertaken or which he is contracting to undertake.”
37. As is frequently observed and, indeed, as was observed by Geoghegan J. in Wildgust (at para. 10), there were nuanced differences of emphasis in the speeches of the Law Lords in Hedley Byrne but overall the concept of “special relationship” was accepted even though different characterisations were given. Counsel for Mr. Walsh placed particular emphasis on a passage from the speech of Lord Pearce (at p.540). As I believe that reliance on behalf of Mr. Walsh on the passage and, in particular, the portion emphasised, is misconceived, I consider it appropriate to put it into context. Lord Pearce stated (at p. 539) that innocent misrepresentation per se gives no right to damages, but he identified three situations in which it would:
      (a) if the misrepresentation was intended by the parties to form a warranty between contracting parties, that is to say, a contractual situation, it gives on that ground a right to damages;

      (b) if an innocent misrepresentation is made between the parties in a fiduciary relationship, it may, on that ground, give a right to claim damages for negligence; and

      (c) there is also a duty of care created by “special relationships” which, though not fiduciary, give rise to an assumption that care as well as honesty is demanded.

38. The passage relied on by counsel for Mr. Walsh forms part of an analysis by Lord Pearce of what he described (at p. 539) as a “most important circumstance” - “the form of the inquiry and of the answer”. He pointed out that in Hedley Byrne both were plainly stated to be without liability. In addressing an argument made on behalf of the appellant that the words used were not sufficiently precise to exclude liability for negligence, and having stated that he did not accept that, even if the parties were already in contractual or other special relationship, the words would give no immunity to a negligent answer, in the passage relied on by counsel for Mr. Walsh he stated:
      “But in any event they clearly prevent a special relationship from arising. They are part of the material from which one deduces whether a duty of care and a liability for negligence was assumed. If both parties say expressly (in a case where neither is deliberately taking advantage of the other) that there shall be no liability, I do not find it possible to say that a liability was assumed.”
39. Emphasis is placed by counsel for Mr. Walsh on the words “[t]hey are part of the material from which one deduces whether a duty of care and a liability for negligence was assumed” in that passage. That, it is suggested, means that the English courts have treated the presence of a disclaimer in negligent misstatement cases as one of the factors to be taken into account in determining whether the maker of the statement has “assumed responsibility” to the recipient, but not as an automatic bar to recovery by the recipient. The principal reason advanced on behalf of Mr. Walsh for the proposition that the disclaimer in the brochure in this case was ineffective to bar recovery by Mr. Walsh was the finding by the trial judge in his judgment (at para. 54), which is referred to earlier (at para. 22), that the disclaimer was of a type which is regarded by potential purchasers as relating “to relatively minor measurement errors”. Obviously, a disclaimer in most cases will only be part of the material from which one deduces whether what is now considered to be assumption of responsibility for the task exists. If it does not, the requirement of “proximity” or “a special relationship” will not be met. The misconception on the part of counsel for Mr. Walsh is in failing to recognise that the significance of a disclaimer and its proper interpretation, as the law has evolved, is in determining whether the giver of the information has assumed responsibility for the task for the benefit of the recipient claimant, as will be explained later.

Smith

40. Chronologically, the next authority of the Courts of the United Kingdom referred to in the judgment of the trial judge is the decision of the House of Lords in Smith. There the Law Lords were dealing with two appeals, but I consider it sufficient to address the appeal in Smith. The facts were that Mrs. Smith applied to a building society for a mortgage to enable her to buy a house. The building society was under a statutory duty to obtain a written valuation report on the house. It instructed the appellants, Eric S. Bush, a firm of surveyors, to inspect the house and carry out a valuation. Mrs. Smith paid the building society an inspection fee. She signed an application form which stated that the building society would provide her with a copy of the report and mortgage valuation obtained by it. The form contained a disclaimer, the text of which counsel for Mr. Walsh put before this Court. The text is to be found in the report (at p. 842), and it was in the following terms:-

      “I accept that the society will provide me with a copy of the report and mortgage valuation which the society will obtain in relation to this application. I understand that the society is not the agent of the surveyor or firm of surveyors and that I am making no agreement with the surveyor or firm of surveyors. I understand that neither the society nor the surveyor or firm of surveyors will warrant, represent or give any assurance to me that the statements, conclusions and opinions expressed or implied in the report and mortgage valuation will be accurate or valid and that the surveyor’s report will be supplied without any acceptance of responsibility on their part to me.”
The appellants valued the house at £16,500.00 and the report recorded that no essential repairs were required. Relying on the report and without having obtained an independent survey, Mrs. Smith purchased the house for £18,000.00, having accepted an advance of £3,500.00 from the building society. Eighteen months after Mrs. Smith had purchased the house, bricks from the chimney collapsed and fell through the roof causing considerable damage. She brought an action against the appellants for damages for negligence. She was successful at first instance and was awarded damages. The Court of Appeal affirmed that decision and the House of Lords affirmed the decision of the Court of Appeal. A complicating factor in that case was that the disclaimer made by or on behalf of the surveyor appellants was subject to the statutory provisions of the Unfair Contract Terms Act 1977 (“the Act of 1977”) in force in the United Kingdom, and had to satisfy the requirement of reasonableness stipulated in s. 2(2) of the Act of 1977. It was held that the requirement was not satisfied, so that the disclaimer was not effective to exclude liability for negligence.

41. In the overall context of the evolution of the law in the United Kingdom on negligent misstatement, and, in particular, the concept of assumption of responsibility, the following passage from the speech of Lord Griffiths in Smith, which addresses the issues which arose on that appeal other than the issue of the requirements of the Act of 1977, is quoted with a view to providing some enlightenment as to later comments on it. He stated (at p. 864):-

      “I have already given my view that the voluntary assumption of responsibility is unlikely to be a helpful or realistic test in most cases. I therefore return to the question in what circumstances should the law deem those who give advice to have assumed responsibility to the person who acts on the advice or, in other words, in what circumstances should a duty of care be owed by the advisor to those who act on his advice? I would answer[:] only if it is foreseeable that if the advice is negligent the recipient is likely to suffer damage, that there is a sufficiently proximate relationship between the parties and that it is just and reasonable to impose the liability. In the case of a surveyor valuing a small house for a building society or a local authority, the application of these three criteria leads to the conclusion that he owes a duty of care to the purchaser. If the valuation is negligent and is relied on, damage in the form of economic loss to the purchaser is obviously foreseeable. The necessary proximity arises from the surveyor’s knowledge that the overwhelming probability is that the purchaser will rely on his valuation, the evidence was that surveyors knew that approximately 90 per cent of purchasers did so, and the fact that the surveyor only obtains the work because the purchaser is willing to pay his fee. It is just and reasonable that the duty should be imposed for the advice is given in a professional as opposed to a social context and liability for breach of duty will be limited both as to its extent and amount. The extent of the liability is limited to the purchaser of the house. The amount of liability cannot be great because it relates to a modest house.”
That passage was preceded by an analysis by Lord Griffiths of a decision of the Queens Bench Division of the English High Court in Yianni v. Edwin Evans & Sons (A Firm) [1982] Q.B. 438 (“Yianni”). Lord Griffiths stated that he had come to the conclusion that the Yianni case had been correctly decided.

Yianni

42. Although not mentioned in the judgment of the High Court, or in the written submissions filed on behalf of Mr. Walsh, counsel for Mr. Walsh attached some importance to the Yianni decision in the oral submissions in this Court. It was also a case in which the plaintiffs decided to buy a house and to obtain a loan from a building society. The building society instructed the defendants, a well established firm of valuers and surveyors who regularly carried out valuations for the building society, to inspect the house and value it. The instructions from the building society named the plaintiffs as the purchasers, set out the purchase price and the loan required. The defendants reported that the house was adequate security for the loan. The building society accepted the report and notified the plaintiffs that they were willing to lend and they also sent them a copy of the society’s explanatory booklet. However, as is recorded in the judgment (at p. 447), Mr. Yianni did not read it, but if he had done so he would have read on p. 2 the following paragraph under the heading “Valuation”:-

      “The Society does not accept responsibility for the construction or condition of the property offered as security, nor does it warrant that the purchase price is reasonable. The valuer’s report is confidential to the Society and is exclusively for the use of the Directors and Officers in determining whether a loan should be made and if so, for what amount. The Society may bring to your notice any defects which the valuer mentions but it should not be assumed that no other defects exist. If you require a survey for your own information and protection, you should instruct a surveyor independently. You are recommended to do this.”
43. On those facts it was held by the Queens Bench Division (Park J.) that the defendants were liable in negligence to the plaintiffs. It was further held that the plaintiffs had not been guilty of contributory negligence. Counsel for Mr. Walsh cited the penultimate paragraph in the judgment (at p. 457) on the issue of contributory negligence, which was in the following terms:-
      “Finally [counsel] says that the plaintiffs should be held guilty of contributory negligence because they failed to have an independent survey: made no inquiries with the objective discovering what had been done to the house before they decided to buy it: failed to read the literature provided by the building society and generally took no steps to discover the true condition of the house. It is true that the plaintiffs failed in all of these respects, but that failure was due to the fact that they relied on the defendants to make a competent valuation of the house. I have been given no reason why they were unwise to do so. I have earlier read the paragraph under the heading ‘Valuation’ in the building society’s handbook, which Mr. Yianni did not read. No doubt if the paragraph had been in stronger terms, and had included a warning that it would be dangerous to rely on the valuer’s report, then I think that the plaintiffs might well have been held to be negligent. But, in my judgment, on the evidence the allegation of contributory negligence fails.”
While, as counsel for JLL submitted, the issue of contributory negligence does not arise unless liability for negligent misstatement is found on the part of JLL, I have quoted that passage because the reference to the inclusion of a warning in a disclaimer is resonant of the observations of the trial judge in his judgment (at para. 63) as quoted earlier (at para. 23). A suggestion of the necessity for a warning, I believe, is not to be found in any of the other authorities of the courts of the United Kingdom to which this Court’s attention has been drawn.

44. By way of general observation, I find it difficult to see any real analogy between the Yianni case, or, indeed, the Smith case, on the one hand, and this case, on the other hand. In the former cases each valuation was carried out in the context of a statutory framework which imposed a duty on the building society to make arrangements for the valuation of a property offered as security for an advance, which statutory framework, in the words of Lord Griffiths in Smith, “bites on such disclaimer”. Further, it was the prospective borrower who paid the valuation fee. Apart from that, the views of Lord Griffiths on the concept of assumption of responsibility have not found favour in the jurisprudence of the United Kingdom courts.

Glencar

45. The decision of the House of Lords in Smith pre-dates its decision in Caparo. Before considering the nature of the claim in Caparo and its factual context and, in particular, the specific passage in the speech of Lord Bridge in Caparo relied on by counsel for JLL in this case, it is appropriate to take a broader view of that decision by reference to the observations of this Court in relation to it in Glencar. In his judgment, Keane C.J., having noted that ultimately in Caparo a different approach had been adopted by the House of Lords as to determination whether a duty of care is owed and, if so, what is its scope, quoted the following passage from the speech of Lord Bridge (at p. 617), in which he summed up the approach in England:-

      “What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon one party for the benefit of the other.”
Later in addressing the law in this jurisdiction, Keane C.J. stated (at p. 139):-
      “There is, in my view, no reason why courts determining whether a duty of care arises should consider themselves obliged to hold that it does in every case where injury or damage to property was reasonably foreseeable and the notoriously difficult and elusive test of ‘proximity’ or ‘neighbourhood’ can be said to have been met, unless very powerful public policy considerations dictate otherwise. It seems to me that no injustice will be done if they are required to take a further step of considering whether, in all the circumstances, it is just and reasonable that the law should impose a duty of a given scope on the defendant for the benefit of the plaintiff…”
46. It must be borne in mind that of the allegations on which the claim against the defendant in Glencar, Mayo County Council, was based, the allegation of relevance for present purposes was of negligent action in the exercise of its statutory function as planning authority, not an allegation of negligence misstatement. Further, while it must also be borne in mind that the view of Keane C.J. was obiter, within three years, it had been endorsed by this Court in the judgment of Fennelly J. in Breslin v. Corcoran [2003] 2 IR 203, a case also involving a negligent act as distinct from a negligent misstatement. Fennelly J. stated (at p. 208):
      “I consider that this passage represents the most authoritative statement of the general approach to be adopted by our courts when ruling on the existence of a duty of care. It seems to me that, in addition to the elements of foreseeability and proximity, it is natural to have regard to considerations of fairness, justice and reasonableness. Almost anything may be foreseeable. What is reasonably foreseeable is closely linked to the concept of proximity as explained in the cases. The judge of fact will naturally also consider whether it is fair and just to impose liability. Put otherwise, it is necessary to have regard to all the relevant circumstances.”

Caparo

47. The decision of the House of Lords in Caparo arose from the trial of a preliminary issue as to whether a firm of accountants, who were the auditors of the accounts of a public limited company for a specific year and were defendants in an action alleging that the auditors had been negligent in auditing the accounts, owed a duty of care to the respondents, who were shareholders in the company and who, after receipt of the audited accounts for the year in question, purchased more shares in the company and later in the year made a successful takeover bid for the company. The passage in the speech of Lord Bridge relied on by counsel for JLL in this case follows an analysis of a number of cases including Hedley Byrne and Smith. Lord Bridge stated (at p.620):-

      “The salient feature of all these cases is that the defendant giving advice or information was fully aware of the nature of the transaction which the plaintiff had in contemplation, knew that the advice or information would be communicated to him directly or indirectly and knew that it was very likely that the plaintiff would rely on that advice or information in deciding whether or not to engage in the transaction in contemplation. In these circumstances the defendant could clearly be expected, subject always to the effect of any disclaimer of responsibility, specifically to anticipate that the plaintiff would rely on the advice or information given by the defendant for the very purpose for which he did in the event rely on it. So also the plaintiff, subject again to the effect of any disclaimer, would in that situation reasonably suppose that he was entitled to rely on the advice or information communicated to him for the very purpose for which he required it.”
On this appeal counsel for JLL drew attention to the qualifications in that quotation by reference to “the effect of any disclaimer of responsibility”, and argued that the existence and effect of the relevant disclaimer is crucial in any given case. Counsel for Mr. Walsh emphasised that what is of importance is the “effect” of any disclaimer, rather than its mere existence.

48. In Caparo, Lord Bridge noted (at p. 623) that some of the speeches in the Hedley Byrne case derive a duty of care in relation to negligent statements “from a voluntary assumption of responsibility on the part of the maker of the statements”, whereas in Smith Lord Griffiths emphatically rejected the view that such was the true ground of liability. Lord Bridge, however, considered that, in the context of the appeal then before the House of Lords, nothing turned on the difference between the two approaches. The outcome of the appeal in Caparo was that the House of Lords found that the auditors did not owe a duty of care to the respondents, either as shareholders or as potential investors in the company.

49. Before leaving the Caparo decision, it is appropriate to record that, on the facts there, no issue arose as to the existence or effect of any disclaimer of responsibility. While the passage quoted above from the speech of Lord Bridge does acknowledge that the effect of a disclaimer of responsibility may be of significance, it is obvious from the next sentence that what Lord Bridge was endeavouring to do was to distinguish the situations in the decided cases which he had outlined in that passage from the entirely different situation where, in his words, “a statement is put into more or less general circulation and may foreseeably be relied on by strangers to the maker of the statement for any of a variety of different purposes which the maker of the statement has no specific reason to anticipate.” To obviate the unsatisfactory outcome which would result from holding such a maker of a statement to be under a duty of care in respect of the accuracy of the statement “to all and sundry”, Lord Bridge outlined what he would expect to find in the decided cases as follows (at p. 621):

      “Hence, looking only at the circumstances of these decided cases where a duty of care in respect of negligent statements has been held to exist, I should expect to find that the ‘limit or control mechanism’ . . . rested in the necessity to prove, in this category of the tort of negligence, as an essential ingredient of the ‘proximity’ between the plaintiff and the defendant, that the defendant knew that his statement would be communicated to the plaintiff, either as an individual or as a member of an identifiable class, specifically in connection with a particular transaction or transactions of a particular kind (e.g. in a prospectus inviting investment) and that the plaintiff would be very likely to rely on it for the purpose of deciding whether or not to enter upon that transaction or upon a transaction of that kind.”
In the light of what Lord Bridge said earlier, an effective disclaimer of responsibility prevents the “proximity” ingredient of the existence of a duty of care being established.

McCullagh

50. McCullagh was decided by the Court of Appeal, after the decision of the House of Lords in Caparo. Of all of the authorities cited on behalf of the parties, it is the authority which factually bears most resemblance to this case. The facts were that the plaintiff went to view a property in Chiswick in London, having seen a magazine advertisement which described the property as having “gardens of nearly 1 acre”. At the viewing, a director of the defendant estate agents involved in the sale of the property, Mr. Scott, orally represented to the plaintiff that the site occupied 0.92 of an acre. At the end of the viewing he handed the plaintiff a copy of the defendant’s particulars of the property, which stated the area as 0.92 acres. In fact, the site area was 0.48 acres. The plaintiff made an offer for the property that evening, and having revisited the property the next day, increased his offer, which was accepted by the vendors, and contracts were exchanged on the following Monday. When the plaintiff discovered that the plot site was only 0.48 acres, he initiated proceedings against the estate agents for damages for negligence. The estate agents, in their defence, relied on the disclaimer in their particulars document. It is appropriate to record the terms of the disclaimer, as set out in the judgment of Hobhouse L.J. (at p.209), because the terms of the disclaimer were expressly brought to the attention of this Court by counsel for Mr. Walsh. Having referred to the particulars, Hobhouse L.J. stated:

      “They included in five paragraphs at the end of Lane Fox’s standard disclaimer:

      ‘1. These particulars do not constitute, nor constitute any part of, an offer or contract.

      2. All statements contained in these particulars, as to this property, are made without responsibility on the part of Lane Fox or the vendors or leasers.

      3. None of the statements contained in these particulars, as to this property, are to be relied on as statements, or representations of fact.

      4. Any intending purchasers must satisfy themselves by inspection, or otherwise, as to the correctness of each of the statements contained in these particulars.

      5. The vendors do not make or give, and neither Lane Fox nor any person in their employment, has any authority to make or give any representation or warranty whatsoever in relation to this property.’

This disclaimer was in terms which conformed closely to those commonly used by other estate agents at the time.”

51. It is clear from the judgments of the Court of Appeal in McCullagh, that the factual context, not merely the oral representation made by Mr. Scott, and the manner in which the plaintiff’s case was pleaded and argued, gave rise to complications, which were addressed in the judgments. However, for present purposes, it is only necessary to focus on the findings of the Court of Appeal in relation to the disclaimer.

52. Counsel for JLL relied on a passage from the judgment of Hobhouse L.J., which was preceded by an analysis of the speeches of the Law Lords in Hedley Byrne, and was immediately preceded by the quotation of the passage from the speech of Lord Devlin, quoted earlier (at para. 36), Hobhouse L.J. stated (at p.222):

      “Thus the relevance of the disclaimer is to negative one of the essential elements for the existence of the duty of care. It negatives the assumption of responsibility for the statement. It implicitly tells the recipient of the representation that if he chooses to rely upon it he must realise that the maker is not accepting responsibility for the accuracy of the representation. The disclaimer is part of the factual situation which the court has to take into account in deciding whether or not the defendants owed a duty of care to the plaintiff. Put another way, the question is whether the plaintiff was entitled to treat the representation as one for which the defendants were accepting responsibility. This is primarily a factual question.”
Hobhouse L.J., having recognised that there had been some criticism in the speech of Lord Griffiths in Smith and in the speech of Lord Roskill in Caparo of the concept of assumption of responsibility, went on to state that the importance of that concept in cases of negligent misrepresentation was again recognised and emphasised in a subsequent decision of the House of Lords: Henderson v. Merrett Syndicates [1995] 2 AC 145 (“Henderson”). Moreover, in White v. Jones [1995] 2 AC 207 (“White”) Lord Browne-Wilkinson in the House of Lords “also emphasised the importance of the concept, assumption of responsibility”.

53. Later in his judgment, in applying the legal principles to the facts of the case, Hobhouse L.J., in a passage relied on by counsel for JLL, and in part relied on by counsel for Mr. Walsh, stated (at p.237):

      “The right approach, as is made clear in Hedley Byrne, is to treat the existence of the disclaimer as one of the facts relevant to answering the question whether there had been an assumption of responsibility by the defendants for the relevant statement. This question must be answered objectively by reference to what a reasonable person in the position of Mr. McCullagh would have understood at the time that he finally relied upon the representation. In this context, it is obvious that the statement that the acreage of the property is 0.92 was a statement that was taken from the particulars, and that the defendants were not assuming responsibility for that statement. The mere fact that Mr. Scott, when showing Mr. McCullagh round the property, gave the same information to Mr. McCullagh, would not lead a reasonable person to conclude that the defendants were thereby choosing to assume responsibility for the statement which they said, in the particulars, they were not assuming responsibility for. The submission that such a conclusion would be reasonable is unreal. It was not supported by any evidence. Mr. McCullagh said (surprisingly) that he had not bothered to read the particulars, but he also said that he knew that they would contain disclaimers of the type which they, in fact, did. The submission was further inconsistent with paragraph 5 of the disclaimer. The essence of the law of negligence is the application of objective standards of reasonableness. By those standards, it is clear that the defendants were not assuming responsibility for the accuracy of the statement about the acreage. The position might be different if the representation had been about something not, or not expected to be, included in the particulars.”
In the written submissions filed on behalf of Mr. Walsh particular emphasis was attached to the first two sentences in that passage from the judgment of Hobhouse L.J., following on from reliance on the passage from the speech of Lord Pearce in Hedley Byrne quoted earlier (at para. 38). However, on the hearing of the appeal, counsel for Mr. Walsh expressly disavowed the proposition embodied in the second sentence, namely, that the effect of the disclaimer must be determined objectively.

54. Sir Christopher Slade agreed with that conclusion of Hobhouse L.J. Citing Henderson he stated (at p.243):

      “The assumption of responsibility had been negatived by an appropriate disclaimer.”
Nourse L.J. was of the view that the disclaimer put the matter that there had been no breach of duty by the defendant estate agents, Lane Fox, beyond doubt.

Wildgust

55. The dispute which was the subject of the appeal before this Court in Wildgust was fundamentally different from the dispute on this appeal, and, in particular, no question arose as to the relevance of a disclaimer of responsibility in determining whether there was liability for negligent misstatement. However, the judgments of this Court are of relevance, because, at a general level, they addressed the law on negligent misstatement in the aftermath of Caparo and Glencar. Moreover, because the position of counsel for Mr. Walsh appears to be that the judgment of Geoghegan J. provides the answer to the core issue on this appeal, although I consider that it does not, it is necessary to consider that judgment in detail.

56. The facts in Wildgust were that the first named plaintiff, Harold Wildgust (“Mr. Wildgust”), and his wife entered into personal guarantees with a lender, Hill Samuel Bank Limited (“Hill Samuel”) in relation to the liability of the second named plaintiff, Carrickowen Limited, a company controlled by Mr. Wildgust, for loans it had obtained from Hill Samuel. Further, Mr. Wildgust and his wife gave security to Hill Samuel in the form of the assignment to Hill Samuel of a policy of assurance on the life of each with Norwich Union Life Assurance Society (“Norwich Union”). A monthly premium payable on the policies was paid by way of direct debit from an account in the name of Mrs. Wildgust held with Bank of Ireland. The premium payment due in March 1992 was not paid by direct debit. Although Bank of Ireland was originally a defendant in the proceedings, the plaintiffs’ claim against Bank of Ireland was settled. In essence, the dispute which was the subject of the appeal to this Court was the dispute between Mr. Wildgust and Norwich Union, which had refused to pay out on the policy on the life of Mrs. Wildgust after her death. The claim against Norwich Union was for an order compelling Norwich Union to pay out on the policy on Mrs. Wildgust’s life or for damages for negligent misstatement.

57. The negligent misstatement at the heart of the claim against Norwich Union arose in circumstances in which, Hill Samuel having been notified by Norwich Union on 6th April, 1992 of default in payment on foot of the direct debit of the monthly premium then due, an officer of Hill Samuel, Declan O’Hanlon (“Mr. O’Hanlon”), contacted Mr. Wildgust and was informed by him that a cheque had been sent to Norwich Union which would cover the premium due. Mr. O’Hanlon subsequently contacted Norwich Union by telephone on 22nd April, 1992 seeking confirmation that the policy was correct and in order. It was confirmed by Norwich Union that the cheque had been received and that everything was correct and in order.

58. However, subsequently it became apparent that everything was not correct and in order from the perspective of Norwich Union because of the manner in which Norwich Union treated the payment by cheque. As a result, the policy on the life of Mrs. Wildgust was treated as having lapsed in May 1992.

59. As recorded by Geoghegan J. in his judgment (at para. 7), Mr. O’Hanlon had not informed Mr. Wildgust that he had sought confirmation from Norwich Union that the premiums were paid up, so that Mr. Wildgust could not be said to have personally relied on the information given to Mr. O’Hanlon by Norwich Union. As is also recorded, Mr. Wildgust’s claim against Norwich Union failed in the High Court on the single ground of non-reliance. Geoghegan J. quoted what he described as the “quite crucial” final paragraph of the judgment of the High Court (Morris P.) delivered on 15th October, 2001. In that passage, which illustrates the “non-reliance” ground on which Mr. Wildgust failed at first instance, Morris P. stated:

      “In my view the one major insurmountable difficulty for the plaintiff is that at no stage did he become aware of the fact that the misstatement had been made by the Norwich Union nor did he place any reliance upon it. He was not misled by the misstatement because he was not aware of it. He was not prejudiced by it. It was not until two months later that he became aware of the fact that the premium had not been paid. In my view the misstatement in no way influenced or contributed towards the conduct of the plaintiff. It did not influence him or cause him to act to his detriment. I do not believe that it would be reasonable that the law should impose a duty on the defendant for the benefit of the plaintiff in these circumstances.”
60. In his judgment (at para. 8 et seq.) Geoghegan J. analysed the development of the law of negligence, in particular having regard to the dichotomy of “negligence in act” and “negligence in a statement” and the necessity of some kind of control mechanism to limit the scope of liability for negligent misstatement in relation to the range of prospective claimants. He recognised (at para. 8) that Caparo had -
      “. . . introduced a third element into liability for negligence, in addition to reasonable foreseeability and proximity, and that is reasonableness in the imposition of a duty of care.”
He also recognised that that principle had been endorsed, albeit obiter, by Keane C.J. in Glencar.

61. Geoghegan J. also referred to other English authorities on the tort of negligent misstatement, including Hedley Byrne, stating (at para. 10) that overall the concept of “special relationship” was accepted in the speeches of the Law Lords in Hedley Byrne, although recognising the nuanced differences referred to earlier. However, as he put it, before travelling further into the case law, he made the following observation on his consideration of the facts of the case before him, stating (at para. 11):

      “The person in the Norwich Union giving the information had reason to believe that the first plaintiff may have been under the impression that his account was in order and he would also be aware or ought to have been aware that Hill Samuel would have paid the premium if a negative answer had been given. It should have been clear, therefore, that an incorrect answer would potentially damage the plaintiffs. That was enough to create the ‘special relationship’, if such is needed but quite apart from that, given that the assignment of the policy to Hill Samuel was by way of mortgage, the first plaintiff had an equity of redemption in the policy. Even though Hill Samuel was making the request in its own business interest, nevertheless in providing the information the second defendant would reasonably be expected to treat Hill Samuel and their customer, the mortgagor, as identified with each other. Even if one might quibble with the word ‘identified’, there was sufficient linkage to create a special relationship but as I have already indicated, I think that such relationship existed at any rate. I do not think that Hill Samuel or Mr. O'Hanlon can be said to have been an agent of the first plaintiff in making the inquiry or in relying on the answer but proof of such agency is not necessary to establish liability.”
What that passage illustrates is that Geoghegan J. was pointing to the concept of a “special relationship” as a controlling mechanism.

62. In his judgment (at para. 13) Geoghegan J. stated that the case which he found of greatest assistance was White, and, in particular, the speech of Lord Browne-Wilkinson, in which, as recorded earlier (at para. 52) in the context of the discussion of the judgment of Hobhouse L.J. in McCullagh, it was noted that the importance of the concept of assumption of responsibility was emphasised. In fact, Geoghegan J. quoted a passage from the speech of Lord Browne-Wilkinson in White, which was quoted by Hobhouse L.J. in his judgment in McCullagh, in support of the emphasis on the importance of the concept of assumption of responsibility. While that concept on its own was not crucial to Geoghegan J. finding for the plaintiff appellants in Wildgust, in my view, the submission made on behalf of Mr. Walsh that the concept was doubted by this Court in Wildgust is simply not correct. I will return to the analysis by Geoghegan J. of the judgment of Lord Browne-Wilkinson in White later. It is perhaps worth noting that the claim in White was a claim against a solicitor who had acted for a testator for failure to comply with instructions from his client to make provision for the plaintiffs, who would have been beneficiaries under the testator’s last will had such failure not occurred. In other words, it was a case of negligent action, or, more correctly, negligent inaction, not of negligent misstatement, although Geoghegan J. saw its importance as the further analysis of the Law Lords of the principles underlying Hedley Byrne.

63. Following his analysis of the aspects of the speech of Lord Browne-Wilkinson in White, which will be considered later, Geoghegan J. stated (at para. 14):

      “The essence of this case was that the person in the [Norwich Union] giving the information in response to the request ought to have known that it would be relied on at least by Hill Samuel and that if the statement was incorrect, the policy could lapse to the detriment not just of Hill Samuel but to their customer who was paying the premiums and who had a beneficial interest in the form of the equity of redemption in the policy. I fail to see how that did not amount to a special relationship. Put shortly, the first plaintiff was a ‘neighbour’ for the purposes of the law of negligence and a specially close one at that. There is no question here of the [Norwich Union] being liable to large numbers of perhaps unknown persons. In my view, the [Norwich Union] is liable to the plaintiffs and I would, therefore, allow the appeal.”
In applying that reasoning to the facts, the “non-reliance” problem was obviated. Indeed, Geoghegan J. pointed to this solution to the problem earlier in a passage (at para. 9), which is quoted in the written submissions filed on behalf of Mr. Walsh, in which Geoghegan J. stated:
      “In Hedley Byrne the only relationship alleged was the relationship between the inquirer and the person giving the information. Hence, the emphasis on reliance by the inquirer. It is, however, a small extension of this, and justified by later caselaw, that where a person who is not the inquirer is damaged as a consequence of the wrong answer and where the existence of such a person and the reasonable foreseeability of such damage ought to have been present in the mind of the person giving the information, there was a special relationship with that person also which gave rise to a duty of care.”
64. There is a comprehensive analysis of the development of the law on negligence and negligent misstatement in the judgment of Kearns J. in Wildgust, which forges a path from Donoghue v. Stevenson [1932] AC 562 to Hedley Byrne, and, ultimately, to Caparo and Glencar. Kearns J. (at para. 56), considered the application of what he described as the “most authoritative recent statement of the law in relation to the general duty of care in negligence”, the passage from the judgment of Keane C.J. in Glencar, quoted earlier (at para. 45). Significantly, Kearns J. went on to pose the question (at para. 57) whether the principles in Caparo, itself a case in negligent misstatement, should apply in this jurisdiction to cases of negligent misstatement, as distinct from cases of the general duty of care in negligence, where application of those principles has already been established by Glencar. The answer to that question is to be found in his judgment (at para. 63), where he stated:
      “In a nutshell, I would interpret Hedley Byrne … in the light of what was stated in Caparo … on the facts of this case.”
However, it is important to emphasise that Kearns J., in reaching that conclusion, primarily focused on one only of the tests involved in determining whether a duty of care arises in the context of negligent misstatement, that is to say, the “proximity” test, stating that the “proximity” test in respect of a negligent misstatement -
      “. . . must . . . include persons in a limited and identifiable class when the maker of the statement can reasonably expect, in the context of a particular inquiry, that reliance will be placed thereon by such person or persons to act or not act in a particular manner in relation to that transaction.”
Those words reflect the words of Lord Bridge in Caparo, which had been quoted earlier by Kearns J. with emphasis (at para. 51).

65. Following on from those conclusions, Kearns J. (at para. 64) expressed the view that they did not represent “any major extension of the principles in Hedley Byrne . . . as the facts of that case may indicate”. That view differed slightly from the reasoning of Geoghegan J., who perceived “a small extension”, as justified by later case law. Significantly for present purposes, later (at para. 66) Kearns J. stated that it must be borne in mind that the plaintiffs lost in Hedley Byrne largely because there was an express disclaimer of responsibility for accuracy of the information provided by the bank, a feature entirely absent from the Wildgust case.

66. It will be recalled that the basis on which the trial judge found that JLL owed a duty of care to Mr. Walsh to ensure that the measurements of the floor area in the brochure were accurate, included the finding that the relationship between JLL and Mr. Walsh was sufficiently proximate to give rise to a “special relationship” of the kind identified in Wildgust. However, it is not clear that, in reaching that conclusion, the trial judge considered, or adequately considered, the fundamental distinction between the position of Norwich Union in Wildgust and of JLL in this case, namely, that in this case there was a disclaimer in which JLL made it clear that the particulars in the brochure were not warranted and that Mr. Walsh was aware of that disclaimer.


Discussion/conclusions as to the relevant legal principles and their application to the facts
67. Having carefully considered the legal principles identified in the authorities cited on behalf of the parties as being applicable to the determination as to whether a person in the position of JLL, an auctioneer or an estate agent who gives information in relation to the property being sold in a sales advertisement or a sales brochure, which is communicated or distributed to intending purchasers, has liability to a purchaser for loss incurred by the purchaser in consequence of reliance on such information which proves to be incorrect, I consider that the first question which must be addressed is whether a duty of care is owed by the estate agent giving the information to the recipient of it. Where the person giving the information in so doing has expressly included a disclaimer in the brochure or advertisement, in my view, the core issue in determining whether a duty of care exists is whether the existence of the disclaimer by reference to its terms has the effect that there is no assumption of responsibility for the task of furnishing correct information on the part of the estate agent giving the information to the recipient. If it has that effect, a duty of care is not owed to the recipient. In my view, what was referred to as the “right approach” by Hobhouse L.J. in McCullagh in the passage from his judgment quoted earlier (at para. 53), is also the proper approach to be adopted in this jurisdiction.

68. Accordingly, the core issue on the facts of this case is whether, in furnishing the brochure to Mr. Walsh, having regard to the existence of the disclaimer on the first page of the brochure, JLL can be found to have assumed responsibility to Mr. Walsh for the accuracy of the information, including the floor area measurements, contained in the brochure. As was pointed out by Hobhouse L.J., that question must be determined objectively. In this case it must be determined by reference to what a reasonable person in the position of Mr. Walsh interested in the Property would have understood on and after 14th July, 2000. Such a reasonable person, having knowledge of the disclaimer, and there is no question here but that Mr. Walsh did have knowledge of the disclaimer, would have taken notice of the following aspects of the disclaimer, namely:

      (a) that it related to the particulars in the brochure, which, in turn, related to a range of factors which probably would have affected the value of the Property, for example, the location of the Property on the ground and by reference to the commercial and institutional surroundings, its zoning for the purposes of planning and development, and its area, both the site area externally and the floor area internally;

      (b) that, while the appellant represented that every care had been taken in the preparation of those particulars and that it believed them to be correct, such representation was unequivocally qualified, in that it was explicitly stated that the particulars were not warranted, which, on a plain reading, means that the particulars were not guaranteed as being correct; and

      (c) that intending purchasers or lessees were expressly told that they should satisfy themselves as to the correctness of the information given.

69. Obviously, in interpreting the disclaimer objectively, it must be read as a whole. When that is done, in my view, it is clear and unambiguous as to non-assumption by JLL of responsibility for the correctness of the particulars, in that, even though JLL is stating that it has done its best to ensure, and it believes, that the information is correct, it is made clear that it is not guaranteeing that such is the case, and Mr. Walsh is told in clear terms that he should satisfy himself as to the correctness of the information. On the facts of the case, it is clear that Mr. Walsh was in a position to satisfy himself as to the correctness or otherwise of the internal measurements set out in the brochure. He could have instructed Mr. O’Brien to measure the internal areas on the 27th July, 2000, when he was conducting the “condition survey”. Mr. O’Brien’s evidence in cross-examination was that, if he had been asked to measure the property, he would have done so, and, indeed, he did so in March 2001.

70. The references in the disclaimer to every care having been taken, and the particulars being believed to be correct, cannot be read on their own as a representation that there is no misstatement or incorrect information in the brochure. Having regard to the context in which they appear, there is no basis on which those words can be taken as a representation that everything is correct and that Mr. Walsh need not enquire or satisfy himself any further. As to the suggestion of the trial judge that, in order to relieve itself of liability to intending purchasers, there would have been an obligation on JLL to draw the attention of Mr. Walsh and other prospective purchasers to “the fact that seemingly precise measurements published were likely to be wholly unreliable and should not be relied upon in any circumstances”, if there was such a requirement, the probability is that auctioneers and estate agents would furnish no information to prospective purchasers. However, in my view, there is no such requirement. What is required is that a person in the position of JLL should clearly and unambiguously state that it is not assuming responsibility for the task of ensuring that the information furnished is correct, and that the recipient of the brochure has responsibility for such task. I am satisfied that, on the proper interpretation of the disclaimer, JLL did so in this case.

71. While it must be acknowledged that, when one compares the language of the disclaimer clause relied on by Lane Fox & Partners Limited in McCullagh with the language in JLL’s brochure, the wording in the former is more precise than the words of the disclaimer in JLL’s brochure, particularly, having regard to the reference to all statements being made “without responsibility on the part of Lane Fox”, nonetheless, I consider that, read objectively, JLL’s disclaimer does clearly convey the message that JLL is not assuming responsibility for the accuracy of the particulars in the brochure and that it is for the intended purchaser to satisfy himself of the correctness of the information. Any other interpretation would ignore the part of the message to the effect that the correctness of the particulars is not warranted. More importantly, it would wholly ignore the part of the message which tells the intending purchasers that they should satisfy themselves as to the correctness of the information given. In short, there is no ambiguity in the message conveyed in the disclaimer and no other interpretation of the words used is open.

72. While Mr. Walsh testified that he was aware of the disclaimer, his evidence was that he thought it referred to minor discrepancies. Mr. Smith also testified that he believed that it was just for small discrepancies, as did Mr. Tony Rooney who prepared the report dated 15th August, 2000 of Palmer McCormack. Mr. Rowan’s evidence was that the disclaimer covered all issues, not just minor errors and, on the basis of his experience, he rejected the proposition that the common perception in the industry was that such a disclaimer only covered minor errors. Accordingly, there was a conflict of evidence on the point before the High Court. However, the Court’s function is to interpret the disclaimer objectively, having regard to the words used. The disclaimer in JLL’s brochure, assessed objectively, is not open to the interpretation that it refers only to minor discrepancies, even assuming that what amount to minor discrepancies could be identified with certainty. On the contrary, what it states is that JLL was not guaranteeing the correctness of any of the information. Aside from that, it could be suggested that it would make no sense for an auctioneer or an estate agent furnishing particulars to a potential purchaser to disclaim responsibility for minor discrepancies, and thereby by implication to assume responsibility for major discrepancies.

73. It is instructive to consider JLL’s disclaimer in the context of the factual framework envisaged by Lord Bridge in the passage from his speech in Caparo (at p. 620), which is quoted above (at para. 47), and to consider whether, and to what extent, it would impact on the propositions set forth in the second and third sentences of that passage. The question arising from the second sentence is whether JLL could clearly be expected specifically to anticipate that Mr. Walsh would rely on the information given by JLL for the very purpose for which Mr. Walsh did, in the event, rely on it. In my view, the answer is that JLL could not, because the message conveyed in the disclaimer to the intended purchaser is that the appellant is not guaranteeing the correctness of the information, and it is up to Mr. Walsh to satisfy himself as to its correctness. The question which arises out of the third sentence is whether Mr. Walsh could reasonably suppose that he was entitled to rely on the information contained in the brochure, for the purpose for which he required it. Once again, the answer is that he could not, because JLL, in the disclaimer, has told him that he must satisfy himself as to the correctness of the information, which included the internal measurements which Mr. Walsh intended to utilise to calculate how much he should tender for the Property.

74. Returning to the emphasis placed by Lord Browne-Wilkinson on the importance of the concept of assumption of responsibility in White, the passage from his speech, quoted by Geoghegan J. in Wildgust, which was also quoted by Hobhouse L.J. in McCullagh, is, as Lord Browne-Wilkinson put it, the bringing together of various strands previously addressed, in considering earlier authorities, in particular, Hedley Byrne. In the passage quoted by Geoghegan J., which sets out the underlying principles which Geoghegan J. adopted (at para. 14), Lord Browne-Wilkinson stated (at p. 274):

      “The law of England does not impose any general duty of care to avoid negligent misstatements or to avoid causing pure economic loss even if economic damage to the plaintiff was foreseeable. However, such a duty of care will arise if there is a special relationship between the parties. Although the categories of cases in which such special relationship can be held to exist are not closed, as yet only two categories have been identified, viz. (1) where there is a fiduciary relationship and (2) where the defendant has voluntarily answered a question or tenders skilled advice or services in circumstances where he knows or ought to know that an identified plaintiff will rely on his answers or advice. In both these categories the special relationship is created by the defendant voluntarily assuming to act in the matter by involving himself in the plaintiff's affairs or by choosing to speak. If he does so assume to act or speak he is said to have assumed responsibility for carrying through the matter he has entered upon. In the words of Lord Reid in Hedley Byrne . . ., he has ‘accepted a relationship which requires him to exercise such care as the circumstances require’, i.e. although the extent of the duty will vary from category to category, some duty of care arises from the special relationship.”
(Emphasis in original).

The corollary of what is stated in that passage obviously is that, if the defendant expressly disclaims assumption of responsibility, he does not come within the second category identified, so that a special relationship does not exist between the defendant and the plaintiff and a duty of care does not arise. Indeed, Lord Browne-Wilkinson earlier in his speech (at p. 272), in the context of demonstrating that assumption of responsibility was a crucial element in the reasoning of the majority in Hedley Byrne, stated:

      “. . . it is clear that the basis on which (apart from the disclaimer) the majority would have held the bank liable for negligently giving the reference was that, were it not for the disclaimer, the bank would have assumed responsibility for such reference.”
In short, it is to be inferred that it was the disclaimer which saved Heller & Partners from assuming responsibility and, ultimately, from liability and negligence.

75. Earlier in his speech, Lord Browne-Wilkinson in a passage (at p. 273), which was also quoted in part by Hobhouse L.J. in McCullagh, explained one strand, the meaning of assumption of responsibility outside a fiduciary relationship and its consequences, stating:

      “Just as in the case of fiduciary duties, the assumption of responsibility referred to is the defendant’s assumption of responsibility for the task, not the assumption of legal liability. Even in cases of ad hoc relationships, it is the undertaking to answer the question posed which creates the relationship. If the responsibility for the task is assumed by the defendant he thereby creates a special relationship between himself and the plaintiff in relation to which the law (not the defendant) attaches a duty to carry out carefully the task so assumed. If this be the right view, it does much to allay the doubts about the utility of the concept of assumption of responsibility voiced by Lord Griffiths in Smith . . . and by Lord Roskill in Caparo . . .”
76. There is an interesting commentary on the concept of assumption of responsibility in Buckley: The Law of Negligence 4th Ed., (Oxford, 2005) at para. 4.17 where it is stated:

“In Henderson . . ., Lord Goff pointed out that, in Hedley Byrne, ‘all of their Lordships spoke in terms of one party having assumed or undertaking a responsibility towards the other’. Although the concept of ‘assumption of responsibility’ was criticised in the House of Lords in two cases subsequent to Hedley Byrne, its validity was emphatically reaffirmed by the House itself in Henderson . . . and White . . . . In both cases, however, the concept of assumption of responsibility was redefined as revolving around the task which the defendant undertook to carry out rather than the notion of an assumption of legal responsibility towards a specific individual. The earlier approach had been open to criticism on the grounds of artificiality, not least where liability was imposed under the Hedley Byrne principle despite the defendant’s having sought to disclaim responsibility. By focusing upon the work undertaken, rather than the person who originally commissioned it, the new approach sought not only to avoid that artificiality but also to provide a coherent basis for the imposition of liability in favour of third parties.”

The two cases referred to in that passage in which the concept was criticised in the House of Lords were in the speech of Lord Roskill in Caparo and in the speech of Lord Griffiths in Smith. That commentary is repeated in the 5th edition of Buckley published in 2011 (Buckley: The Law of Negligence and Nuisance).

77. As counsel for JLL emphasised, the disclaimer in JLL’s brochure specifically referred to the particulars in the brochure and it invited Mr. Walsh to satisfy himself as to the correctness of the “particulars”, which included the internal measurements of the Property. Adopting the words of Lord Browne-Wilkinson in the passage from White quoted earlier (in para. 75), there was no “assumption of responsibility” by JLL "for the task" of providing information in the particulars in the brochure in relation to the Property, including the internal floor area measurements, which would be accurate and correct. Accordingly, there was not created a “special relationship” between JLL and Mr. Walsh “in relation to which the law . . . attaches a duty to carry out carefully the task so assumed”. In summary, the absence of an assumption of responsibility for the task, because of the existence and effect of the disclaimer, resulted in the proximity or special relationship requirement not being met and there being no duty of care imposed by law on JLL and no liability to Mr. Walsh for the loss which Mr. Walsh claimed was a consequence of the errors in the internal measurements.

78. While it is not necessary to apply the “third element” introduced in Caparo in determining whether a duty of care was owed by JLL to Mr. Walsh and JLL’s liability on the facts here, I feel constrained to observe that it would be difficult to conclude that it would be fair, just or reasonable to impose a duty of care on JLL for the benefit of Mr. Walsh in relation to the accuracy of the particulars set out in the brochure, given the existence and effect of the express disclaimer of responsibility of which Mr. Walsh was aware, even if, on the basis of his evidence, he misunderstood that effect. He should have got advice as to its meaning.

79. The disclaimer in the brochure was not immaterial in the manner suggested by the trial judge in the passage from his judgment (at para. 51) quoted earlier or, indeed, in any respect. The point on which I fundamentally disagree with the reasoning in the judgment of the High Court, which ultimately led to what I consider to be the incorrect conclusion that JLL owed a duty of care to Mr. Walsh and was in breach of that duty, was the failure, having considered the matter objectively, to recognise that there was no assumption of responsibility on the part of JLL in relation to the task of furnishing accurate internal measurements to Mr. Walsh and that the consequence was that the law imposed no duty of care on JLL. As such recognition should have been the starting point in the process of determining whether a duty of care was owed by JLL to Mr. Walsh and whether liability for negligent misstatement lay on JLL, the controversies in relation to the findings of fact made by the trial judge raised on the appeal do not have to be resolved, even if they could, or should, be.

80. The conclusion that JLL did not owe a duty of care to Mr. Walsh in respect of the accuracy of the internal measurements of the Property as shown in the brochure furnished by JLL to Mr. Walsh spells the death knell of Mr. Walsh’s claim against JLL for damages for negligent misstatement. Accordingly, whether there was negligence or contributory negligence on the part of Mr. Walsh in failing to have the internal measurements checked, in addition to having the “condition” survey carried out, does not have to be considered.


Order
81. For the reasons outlined above, I consider that there should be an order allowing the JLL’s appeal and discharging the order of the High Court finding that JLL was negligent and awarding damages to Mr. Walsh against JLL.


Draft Judgment of Mr. Justice John MacMenamin dated the 1st day of June, 2017

1. The appeal before the Court raises issues of some importance. The Court must assess how the law of negligent mis-statement is to be applied in the case of an auctioneers’ brochure that contained an incorrect statement in an exemption clause, to the effect that “every care” had been taken in its preparation. A further question is no less significant: that is, the application here of the established jurisprudence of this Court to the effect that findings of fact made by a trial judge are binding, unless there was no evidence to support such findings.

2. In a judgment delivered by the High Court on the 24th January, 2007. Quirke J. found the appellant firm (the defendant, or JLL) liable to pay the respondent, (the plaintiff, or Mr. Walsh), €350,000 in damages on foot of its negligence and negligent mis-statement, in the preparation of an auctioneer’s brochure. (See [2009] 4 IR 401). At the level of legal principle, the case might be perceived as therefore necessitating a broad consideration of the legal issues in an area where the law of torts and the law of contract intersect. In other instances, such a case might require consideration and analysis of the scope of liability for a negligent mis-statement; whether there existed a “special relationship” creating a duty of care between the parties; whether the facts established that Mr. Walsh was sufficiently proximate to JLL, so as to make him a person “reasonably likely to be affected” by the firm’s acts or omissions; whether personal reliance on statements made by employees of JLL would be necessary for the recovery of damages; and lastly, but importantly, whether JLL was entitled to rely upon what is said to be an exclusion or exemption clause printed at the base of one page of the brochure issued by that firm for the purposes of the sale. But this case is less complex than that.

3. The essential facts of this case are quite simple. As long ago as July in the year 2000, Mr. Walsh (who then had 20 years experience in the property market) decided to buy a two-storey north Dublin city centre commercial property. JLL sent him a brochure. This described both the measurements of the ground floor, and those of the first floor of the property. But the measurement of the first floor contained a very significant error. Contrary to what the brochure stated, it did not, in fact, measure 10,463 sq. feet, but instead, measured only 8,575.5 sq. feet. Mr. Walsh did not get what he paid for. He paid in excess of Ir.£2 million for the property. As a result of the incorrect measurement, the property was significantly less valuable. The brochure did contain what is said to be an exemption clause. The High Court judge was unimpressed with this clause. He described it as having been placed in very small type at the bottom of the first page of the document. He held that it was not binding on the purchaser, on the facts later described. Having held that a special relationship existed, and that the disclaimer in this case was insufficient to exonerate the firm from liability, he found for the purchaser.

4. JLL has appealed that judgment. The “proximity issue”, in fact, does not present much difficulty. The critical point in the case is largely contextual and fact dependent, that is, the presentation and terms of the disclaimer itself, when seen in their full context. The key point there is not the existence of an exclusion clause, but rather the terms in which this clause is expressed, its location in the brochure, and the other statements to be found in the brochure which were presented as highly factual. Thus, I see this appeal is quite a narrow one.

5. The vexed issues of proximity and reliance in misrepresentation have recently been considered by this Court. (See Cromane Fisheries Limited v. Minister for Agriculture & Others [2016] IESC 6, [2016] I.L.R.M. 81 delivered on the 22nd February, 2016; also, Atlantic Marine Supplies v. Minister for Transport & Others [2016] IESC 43, [2016] 2 I.L.R.M. 397 delivered on the 19th July, 2016. But for the purpose of this appeal, between two private parties to this commercial transaction, questions of proximity are to be seen through the lens of the judgments delivered by this Court in Wildgust v. Bank of Ireland & Others [2006] 1 IR 570. The High Court judgment relies heavily on the principles established there. The correctness of the judgments in Wildgust, and the principles expressed therein, were not challenged in this appeal. It is, therefore, helpful now to set out what was established in that authority, and compare the principles with their application in the instant case at first instance.

6. In Wildgust, Kearns J. pointed out at p. 593, par. 43 that, as long ago as Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] AC 465, a negligent, though honest, misrepresentation could give rise to an action for damages for financial loss, caused thereby, on the basis that a duty of care was implied when a party seeking information from a party possessed of a special skill, trusted the person imparting that information to exercise due care, when that party knew, or ought to have known, that reliance was being placed on his or her skill and judgement. This Court held that, in respect of a negligent mis-statement, the proximity test included a person of limited and identifiable class, when the maker of the statement could reasonably expect, in the context of a particular enquiry, that reliance would be placed thereon by such persons to act, or not act, in a particular manner in relation to that transaction. Concurring, Geoghegan J. held that personal reliance was not always essential, and that, for the purposes of the appeal, he, for his part, would be prepared to assume that the law of negligent mis-statement fell into a separate code from the law of negligent acts.

7. In Hedley Byrne, the only relationship alleged was between the enquirer and the person giving the information. In Wildgust, Geoghegan J. expressed the view that the court’s finding (which related to information given to a third party also affected by the incorrect information), was only a small extension of the principle that a court might hold there was a special duty of care when a person, even one who was not the enquirer, was damaged as a consequence of an incorrect statement; and where the existence of such an affected person, and the reasonable foreseeability of such damage, ought to have been present to the mind of the person imparting the information. He held that, quite apart from contractual or fiduciary relationships, a duty of care in the making of a statement may be held to arise in the context of “other special relationships”, which the court may find to exist in particular cases. He held this duty might emerge when it was plain that the relationship was such that a party seeking information or advice was trusting the other party to exercise such a degree of care as the circumstances required, where it was reasonable for the party seeking information to do that, and where the imparter of information gave advice when he knew, or ought to have known, that the enquirer was relying upon him.

8. Kearns J., who delivered the main judgment in Wildgust, cited with approval the judgment of the House of Lords in Caparo Industries Plc. v. Dickman [1990] 2 AC 605. It is true that, in his speech there, at p. 620 - 621, Lord Bridge of Harwich expressed the view, having regard to the development of the law in respect of negligent mis-statement, that:

      “… The salient feature of all these cases is that the defendant giving advice or information was fully aware of the nature of the transaction which the plaintiff had in contemplation, knew that the advice or information would be communicated to him directly or indirectly and knew that it was very likely that the plaintiff would rely on that advice or information in deciding whether or not to engage in the transaction in contemplation. In these circumstances the defendant could clearly be expected, subject always to the effect of any disclaimer of responsibility, specifically to anticipate that the plaintiff would rely on the advice or information given by the defendant for the very purpose for which he did in the event rely on it. So also the plaintiff, subject again to the effect of any disclaimer, would in that situation reasonably suppose that he was entitled to rely on the advice or information communicated to him for the very purpose for which he required it.” (Emphasis added)
The appellants rely heavily on this passage. They say that it is clear that the existence and effect of the relevant disclaimer is crucial in any given case.

9. I agree that the content and effect of a relevant disclaimer is crucial. However, to my mind, the passage just quoted must not be understood to mean that “any” disclaimer of responsibility will necessarily exonerate a defendant, but rather, an “appropriate” disclaimer should have that effect. (See the speech of Lord Goff of Chieveley in Henderson v Merrett Syndicates Ltd. [1994] 3 ALLER 506, at page 521, where that judge referred to an assumption of responsibility being negatived by an “appropriate disclaimer”. Whether the disclaimer in this case was “appropriate” is one of the main issues of contention in the case. The learned trial judge held that it was not appropriate, in the sense of being sufficient to exonerate the firm from liability. I agree with him, and would uphold this decision in full.

10. This appeal, in my view, hinges on findings of fact made by the trial judge. These are to be assessed with reference to the tests set out by McCarthy J. in Hay v. O’Grady [1992] I.R. 210, and Henchy J. in Northern Bank Finance Corporation v. Charlton [1979] I.R. 149. It is a common feature of both judgments that such findings, when supported by credible evidence, should not be disturbed by an appeal court. I consider that this appeal is, essentially, a ‘fact case’, in particular as regards the judge’s finding as to the state of knowledge of Mr. Walsh, and findings as to “market custom”. The judge’s assessments of the context and content of the disclaimer clause were reasonable. But, because of the fact based nature of these considerations, it is necessary to rehearse the High Court findings in rather more detail than might normally occur in an appeal of this type.

11. The judge’s analysis of the evidence began with matters which are not in controversy. He set out that the property was bought for Ir.£2,342,000, in a sale completed on the 28th September, 2000, some three months after the brochure was given to Mr. Walsh by a Mr. “Woodie” O’Neill, a valuer with JLL. Mr. O’Neill’s role was very significant, as will be seen. He was not called to give evidence. Mr. Walsh already held other property on the northside of Dublin. He wished to buy this property to use as units for commercial tenants.

12. The property was put on sale early in July, 2000. Mr. Walsh visited it on the 13th July, 2000, and following that, went back for a second visit. Mr. Walsh told his contact, Mr. O’Neill, that he was interested in buying, and Mr. O’Neill then gave him the sales brochure, to which reference will be made later. On the 21st July, 2000, Mr. O’Neill wrote to Mr. Walsh, telling him a number of prospective parties had shown interest, and that JLL had been instructed to finalise offers; and that, as a result, the firm had put a deadline on “best offers” of 12 noon on the 28th July, 2000. This was one week from the date of Mr. O’Neill’s earlier letter on the 21st July, 2000.

13. Mr. Walsh engaged a solicitor to examine the title. He retained a Dublin property surveyor, Mr. Val O’Brien, (who had worked for him previously), to conduct an informal “conditions survey”. But Mr. O’Brien did not measure the dimensions of the property, nor did Mr. Walsh ask him to do so. Mr. O’Brien testified that while he regularly carried out such pre-purchase surveys, he had never been actually asked to measure the floor area of a property prior to the submission of offers to a vendor.

14. Mr. Walsh made his offer for the property in an undated handwritten letter, which he said was based upon a “back of the envelope” calculation. This was predicated on the income he estimated he could receive as owner of the property, based on the rent he could potentially receive both for the ground floor and the first floor, which was, at the time Ir.£20 per square foot. His offer for the property was accepted.

Knowledge of the Disclaimer
15. The judge found that Mr. Walsh had been “generally aware” of the disclaimer contained in the JLL brochure, but could not recall whether he had read it with any care. He had, however, noted that it contained a statement to the effect that JLL had “taken every care” in preparing the brochure, and that, in his view, they were a firm of the utmost probity. The plaintiff testified that he had purchased other properties on previous occasions, but had never had a building measured before making a purchase. He relied on JLL’s reputation, credibility and integrity. The evidence was that viewings were designated to take place on Saturday afternoons, as the property was in commercial use. Mr. Walsh testified that it would be difficult to carry on commercial life if everyone had to go round with a measuring tape, so as to be sure of the measurements of premises which they were thinking of buying.

16. The plaintiff testified that his belief was that Mr. Woodie O’Neill had carried out a survey while the previous tenants were in the premises. His belief was fortified by the fact that JLL were to be paid a substantial sum in commission if, and when, the property was sold. The sale was completed on the 28th September, 2000. Between the acceptance and completion, Mr. Walsh did not requisition a measurement survey. He said he continued to rely on the description and measurements which JLL had given to him. It is noteworthy in passing that Mr. Walsh’s bank, who extended credit to him for this transaction, did not carry out a survey on the premises either. This is to be seen in light of other evidence as to what was the then accepted practice among Dublin surveyors.

17. After the sale was completed, the property was let to the Commissioners of Public Works. This letting was negotiated over a period of time, and involved substantial alterations. It was only then, that Mr. Walsh’s surveyor, Mr. O’Brien, discovered that the first floor measurement was incorrect. By letter dated the 20th March, 2001, the surveyor informed Mr. Walsh that, in fact, the total floor area of the property was 21,248 sq. feet, that is, 12,674.6 sq. feet at ground floor, but just 8,573.5 sq. feet - and not 10,463 sq. feet - at the first floor level.

18. Mr. Walsh testified that, he was astonished when he received this information, because he had believed the floor area was 20% greater, as a result of what JLL had said in the brochure concerning the sale. As to the disclaimer, he testified that his belief was that such waivers contained in brochures were only intended to safeguard auctioneers from liability in respect of minor miscalculations, but not otherwise. As a preface to what follows it is necessary to point out that it was established in evidence, and JLL acknowledged, that none of the 10 or 12 other potential investors who looked at the property carried out a measurement survey either.

An Issue in the Case - “Customary Practice”, or “The Prudent Investor
19. What was the custom and practice among Dublin valuers and surveyors at the time? Was it customary or prudent for investors to require properties to be measured before making an offer? Was it negligent for Mr. Walsh not to requisition a survey?

20. On behalf of Mr. Walsh, Mr. Barry Smyth of De Vere White, Auctioneers, and Mr. Tony Rooney, another valuer, testified to the effect that neither of them had ever encountered circumstances where such measurements had been required. Their evidence was also to the effect that it was an understood matter that disclaimers used by most auctioneers were to be seen as covering only minor discrepancies.

21. Two witnesses testified on behalf of JLL on these issues. Mr. Peter Rowan, a surveyor and valuer (who had formerly worked for JLL), testified that a “prudent investor” should carry out a detailed inspection, and measure all floor areas, prior to purchase. Mr. Rowan’s background was generally, in advising financial institutions in property transactions. His testimony was that it would be neither normal, nor prudent, nor acceptable practice, to rely solely on the measurements contained in a sales brochure.

22. Mr. Nigel Healy, a director of JLL, testified to the same effect. Regarding the disclaimer, Mr. Healy testified, it was to be seen as a form of “advice” to a purchaser to carry out inspections and property measurement as a form of due diligence. He said that the measurements in the brochure were to be seen merely as a general guide. Mr. O’Neill did not give evidence. Thus, how the measurements came to be placed in the brochure remained unexplained.

23. In this appeal, counsel for the appellant submitted that the trial judge had erred by not attaching sufficient weight to the fact that Mr. Smyth had testified he would not contradict Mr. Rowan’s opinion on the prevalent practice as to measurement in Dublin. It is said that the judge failed to have regard to the fact that Mr. Smyth had, in terms, “expressly deferred” to Mr. Rowan’s testimony. In fact, although Mr. Smyth did use the word “defer”, I think the situation was slightly more nuanced. There was clear evidence as to what was then common practice in the Dublin property market. Mr. Rowan’s evidence is to be seen at a number of levels. His testimony was to the effect that it was neither acceptable nor prudent practice to purchase without measuring, nor was it normal.

24. Counsel’s note of the evidence shows that, in fact, the judge asked Mr. Rowan a number of rather searching questions regarding his testimony. The judge pointed out to him that twelve potential purchasers had viewed the property, and that not one of those had gone back to JLL to bring to that firm’s attention that there had been a discrepancy of approximately 2,000 ft. between what the brochure said, and the actuality. The judge based his findings, in part, on inference from this evidence.

25. Counsel for the appellant also submitted that the trial judge did not adequately take into account evidence adduced by Mr. Nigel Healy, and Mr. Rowan, to the effect that the disclaimer not only covered minor discrepancies, but rather all issues. In fact, this point was addressed by the trial judge, in the context of his findings as to evidence regarding the common and accepted practice in the Dublin property market in the year 2000. That evidence was to the effect that this understanding was that disclaimers related only to minor discrepancies, and not all issues. His finding on this was a question of fact.

26. The appellants rely on the judgment of Walsh J. in O’Donovan v. Cork County Council [1967] I.R. 173, at 193. There, Walsh J. observed, in the context of a medical negligence action, that if there was a common practice which had inherent defects, which ought to be obvious to any person giving the matter due consideration, the fact that it was shown to have been widely and generally adopted over a period of time, did not make the practice any less negligent. There are passages in the judgment of Henchy J. in Roche v. Peilow [1985] 1 I.R. 232, at page 254, to similar effect. However, reliance on these two statements is apt to mislead, because it might suggest that these questions, so important for determination in this case, were simply matters of law. In fact, this is not so in this case. Having observed ([1967] I.R. 173 at 193) that “Neglect of duty does not cease by repetition to be neglect of duty”, Walsh J. went on at p. 193 - 194 to enter the following caveat:

      “… Furthermore, if there is a dispute of fact as to whether or not a particular practice is a general and approved practice, it is a matter for a jury to determine whether or not the impugned treatment is general and approved practice. In such circumstances, a jury would be told that if they find that there is such a general and approved practice they must acquit the practitioner where there is not the qualification that I have referred to above. If some witnesses say that a particular practice is a general and approved one, and other medical witnesses deny that, then it is an issue of fact to be determined as any other issue of fact. This particular issue cannot be withdrawn from a jury merely because the practice finds support among some medical witnesses, if there be others who deny the fact that it is [a] general and approved practice.” (Emphasis added)
27. Thus, in this “post jury” era, whether or not adherence to a general custom constituted negligence, and whether it contained an inherent defect, were matters for the trial judge to determine as questions of fact. He resolved these in favour of the plaintiff.

28. In giving judgment, the trial judge observed that JLL were a large firm, in existence for a considerable period of time, who had justifiably acquired an excellent reputation for competence, probity and integrity in its business dealings. JLL held itself out as a company with particular skills and expertise in the commercial property markets, both in Ireland, and elsewhere. It relied upon its reputation for excellence in order to encourage prospective customers to avail of its services.

29. He held that the brochure was expressly designed to attract the attention of potential purchasers, in order to encourage them to bid or tender against one another for the property; that the brochure was an integral part of the tendering process, with the explicit intent of maximising the price which potential purchasers would pay; and that was issued with the implicit motivation of maximising the fee which JLL would obtain upon the sale of the property. Thus, he concluded, it was to be expected that potential purchasers would rely upon the information contained in the brochure when deciding whether or not to purchase. The brochure had been published by JLL for the express purpose of influencing a limited number of identifiable persons, and the publication of the disclaimer was immaterial to that fact. The judge held that Mr. Walsh was among the persons to whom the brochure was expressly directed. He, (the purchaser), had been influenced by the information published within the brochure, and had relied on its contents, (including the measurements), when calculating his precise bid or tender for the purchase of the property. He accepted the evidence adduced on behalf of the plaintiff as to what was the general and approved practice in the Dublin market. These were specific findings of fact, based upon credible evidence. It is obvious there was contrary evidence from Mr. Rowan: but here the trial judge’s role was pivotal.

The Brochure
30. The judge carefully analysed, in detail, the extent to which the property was described, in quite large type, on the front page of the brochure, as being of “2,142 m2 - (23,057 square feet), with a site area of 0.13 hectares (0.31 acres)”. On the back page, the brochure described the ground floor as having an area of 12,594 square feet, and the first floor as having an area of 10,463 square feet. This gave rise to a total square footage of 23,057 square feet as set out on the brochure. Corresponding measurements were provided in square metres.

31. Turning to the exemption or waiver clause, the judge pointed out that this was to be found at the bottom of the front page of the brochure, in words, “in very small type”. (See [2009] 4 IR 401 at 404.) The clause read: “Whilst every care has been taken in the preparation of these particulars, and they are believed to be correct, they are not warranted and intending purchasers/lessees should satisfy themselves as to the correctness of the information given.” In my view, his criticisms of the brochure were well justified.

32. I now wish to explain, in a little more detail, other areas where, to my mind, the appellants’ submissions are legally misconceived. While not mentioned in argument, the facts of this case are quite distinct from the those of Scullion v. Bank of Scotland Plc. [2011] IWLR 3212, where the Court of Appeal of England and Wales held (at p. 3226 at par. 54) that it was to “be expected” that a commercial purchaser would obtain an independent valuation (See Charlesworth on Negligence, Thirteenth Ed., Sweet & Maxwell, 2014, p. 31, paragraph 2-30). The findings of fact here are entirely different, and have been described.

33. To my mind, the judgments of the Court of Appeal in Yianni v. Evans [1982] QB 438, and Smith v. Bush [1990] 1 AC 831, must be seen against their own quite distinct and different factual background. Unlike Yianni and Smith, this case does not concern reliance on building society/surveyor statements, or representations from such sources. Thus, those judgments are not on point, and, in any case, this appeal must be looked at from the standpoint of the findings of fact on the evidence. It is nowhere suggested that the respondents’ evidence was not based on evidence. I see no reason to interfere with the judge’s findings on these questions. It is necessary to next consider the disclaimer.

Assumption of Responsibility and The Disclaimer
34. In law and commerce, questions,such as assumption of responsibility, waiver and disclaimer clauses, have an importance which go far beyond the narrow range of this case. Anyone who engages in an online commercial transaction will find that these clauses are said to be part of the contract. To my mind, a clause of such potential importance must be very carefully analysed.

35. The appellants rely on the opinion of Lord Goff of Chieveley in Henderson v. Merrett Syndicates Ltd. [1994] 3 ALLER 506. Dealing with the assumption of responsibility, he stated, at page 521:

      “It follows that, once the case is identified as falling within the Hedley Byrne principle, there should be no need to embark upon any further enquiry, whether it is “fair, just and reasonable” to impose liability for economic loss - a point which is, I consider, of some importance in the present case. The concept indicates too that in some circumstances, for example where the undertaking to furnish the relevant service is given on an informal occasion, there may be no assumption of responsibility, and likewise that an assumption of responsibility may be negatived by an appropriate disclaimer.” (Emphasis added)
36. The appellants also rely on a passage in White v. Jones [1995] 1 ALLER 691, at 715 - 16, where Lord Browne-Wilkinson, speaking for the majority in the House of Lords, laid emphasis on the importance of the concept of assumption of responsibility, to the following effect:
      “Just as in the case of fiduciary duties, the assumption of responsibility referred to is the defendants’ assumption of responsibility for the task not the assumption of legal liability. Even in cases of ad hoc relationships, it is the undertaking to answer the question posed which creates the relationship. If the responsibility for the task is assumed by the defendant, he thereby creates a special relationship between himself and the plaintiff in relation to which the law (not the defendant) attaches a duty to carry out carefully the task so assumed.”
37. Counsel for the appellant points out that the disclaimer referred to the particulars of the sales brochure, and invited the respondent to carry out the task of measuring the particulars himself. It is said it was open to the respondent to have the area measured when the appellant facilitated him with surveying the property, but that he failed to do so.

38. In Patchett & Another v. Swimming Pool & Allied Trades Association Ltd. [2009] EWCA Civ 717, the claimant suffered damages when the contractor he had engaged to construct a swimming pool went into liquidation. Before retaining the contractor, the claimant consulted a website which was maintained by the defendant which asserted that members of the Association were checked for solvency when they became members, and their work was covered by a guarantee. It was not clear, however, that the builder was not a full member. Lord Clarke M.R. found that there was no representation as to continuing solvency, and the claimants had not taken the steps recommended by the website. To my mind, the nature of the representation and the extent of the invitation are to be distinguished on the facts of this case.

39. In my view, the critical issue is not just the invitation; but, additionally, the representation, that is, the factual context against which the invitation was conveyed. What is at issue are not only principles of law, but rather the application of those principles in the context of the facts as found in this case. The true question here is, whether the facts, and in particular the brochure itself, created a duty to take reasonable care to provide accurate information in the brochure. If JLL did owe that duty, then they breached it by providing inaccurate figures.

40. If the disclaimer had been clear to the normal reader and, therefore, “appropriate”, I would entirely accept the appellants could avoid liability. But, the trial judge held that the disclaimer, in its form, was a “quite inadequate means” of notifying prospective purchasers that the seemingly precise measurements of the floor areas, so prominently published within the sales brochure, were wholly unreliable. He laid emphasis on the very precise nature of the figures provided by JLL. He described the waiver, as having been expressed in an “enigmatic sentence”, in small print, wherein JLL had claimed, in terms, to have taken “every care” in the preparation of all the particulars within the brochure, albeit in the context of advising prospective purchasers to “satisfy themselves as to the correctness of the information given”. He held that JLL themselves had arranged to have the property surveyed and measured. This was to accommodate potential purchasers. They arranged to have the results published in the brochure, but the floor area had been negligently measured.

41. The judge found the auctioneers had failed to take appropriate steps to ensure that the information published was accurate. He pointed out that no evidence had been adduced to the effect that it was the practice for prospective purchasers to measure the floor areas of properties after entering into a contract, but before completion. I do not disagree with any of the trial judge’s descriptions of the disclaimer clause. These were matters of fair inference and observation, I believe one could go further: the type face of the disclaimer is better described as “miniscule” rather than small. The findings of fact were based on evidence before him.

42. The test to be applied to the disclaimer is an objective one. On an objective reading what is the effect of the disclaimer, seen in the context of the factual findings? The judge rejected the suggestion that the words in the disclaimer were to cover every contingency. His rejection was supported by credible evidence from Mr. Walsh and his witnesses. I do not accept that an objective assessment of the disclaimer would put the reader of the brochure on a “clear duty of enquiry”, or that it would make it clear to any person reading it that they must go and verify what was contained in the brochure.

43. Counsel for the appellant submitted that the terms of the disclaimer clause were clear and unambiguous. I disagree. To my mind, the disclaimer itself contained a number of representations. The first was to the effect that this highly reputable firm had taken “every care” in the preparation of the particulars. Second, it was represented that the measurements were believed to be correct, although they were not warranted, and that intending purchasers should satisfy themselves as to those measurements. This clause was ambiguous, in the sense that, while it conveyed an invitation, it also contained a representation that acceptance of the invitation was hardly necessary.

44. It is, in my view, erroneous simply to suggest that the very existence of ‘any’ disclaimer clause is sufficient. I do not agree that the statement of law cited from Caparo v. Dickman, quoted earlier at par. 7 supra, is to be read with the broad meaning that any “disclaimer clause” will be sufficient to exonerate the proferror from responsibility. What is, in my view, determinative is, rather, an objective reading of everything that is said in the waiver. It contained an explicit representation to the effect that ‘every care’ had been taken by the firm. This is to be seen in the context of the findings of fact regarding the practice in Dublin among auctioneers, valuers, and surveyors. There was no finding of fact that this was an inherently defective practice.

45. A further key question is the extent to which, upon an objective reading, the potential purchaser was put on notice? It is, of course, true that Mr. Walsh was aware as to the existence of a waiver. But, as the judge found, he was not aware of its purported scope. This was a reasonable inference based on the judge’s assessment of the witness.

46. To the eye of a potential purchaser then, the brochure, which came from a highly reputable firm, conveyed that the firm had taken “every care” in carrying out the measurements of the property. What else was a purchaser to believe? The brochure elsewhere conveys that what was given were accurate, precise measurements in square feet. By its reputation, and by the precise nature of the measurements, the firm conveyed the message that the measurements were reliable. The situation is not altered by deploying the term “while”, as a preface to the disclaimer.

47. For a court to be asked to carrying out a “weighting process” between one half and the other half of this disclaimer clause is itself a rather artificial process. But it can be assisted by looking to the backdrop of the evidence as to how that disclaimer was generally understood. The disclaimer clause contained a representation, intended to instil belief, regarding care. I do not accept that an objective reading entails that the reader should treat the latter part of the waiver as being, in some way, more legally significant than the former. I reject the proposition that the first part of the disclaimer is mere “flowery language”, as it was called, and that only the latter part is legally significant. A disclaimer can only be given the legal significance imparted by all of the actual words it contains, and the sense that all those words, taken together, would reasonably convey. If there is opacity, or ambiguity, it should, at minimum, be strictly construed; if necessary, it should be interpreted contra proferentem. I choose the former.

48. There is, surely, something rather incongruous about a highly reputable firm of auctioneers and valuers seeking to make the case that potential bidders should not, really, lend total credence to, or place complete faith in, their own representation, that they have taken “every care” in preparing measurements. In fact, the evidence did not at all establish that the firm had taken “every care”. The trial court was left in the situation where it might infer that JLL had either carried out the measurements incorrectly and negligently, or, alternatively, had itself conveyed information which was communicated to JLL by another, accepted it at face value, and put it in the brochure, without any intermediate checking. At risk of repetition, the appellant did not call any evidence on this issue.

49. There was a duty upon JLL to take reasonable care to provide accurate information. If the firm owed such a duty, they were in breach of that duty. To my mind, there is only one answer to the question, whether, objectively considered, the information on the website created a relationship of proximity between the parties? It did. Equally, I would hold there is only one answer to the question as to whether it is fair, just and reasonable to impose a duty of care. In my view, it is.

50. I do not think that the terms of the disclaimer, or the findings of fact, support the proposition that what is in question here is some form of “first step”, where the reader is put on enquiry to take further steps. The reader was not told that the figures on the brochure were “estimated” or “approximate”. One cannot avoid the conclusion that the disclaimer was intended to induce a state of belief or trust, which two attributes are fundamental to all business transactions. The precisely conveyed actual words and figures, in the context of their presentation, can only be viewed as an assertion of the appellant’s own corporate belief of the truth of what was said in the brochure, rather than some ‘best guess’, or an ‘estimate’. The measurements contained were not “flowery statements”, or guesses, or estimates, but rather conveyed the impression of being statements of hard, physical fact.

51. Counsel for the appellant has drawn our attention to the judgment of the Court of Appeal of England and Wales in McCullagh v. Lane Fox & Partners [1996] PNLR 205. There, the Court of Appeal held that an estate agent, who carelessly mis-described the size of a property, was not liable to a purchaser who bought the property relying on the mis-description, if the mis-description was part of the particulars which contained standard disclaimers.

52. At first sight, the judgment would appear to favour the appellant. But, what is instructive, and I believe critical, are the form and words of the disclaimer which that court held would put a purchaser on notice that he or she should carry out their own checks. The disclaimer, specifically, negatived any assumption of responsibility for the statements contained in the brochure. It told the recipient, in terms, that if he or she chose to rely upon it, then they must realise that the maker of the statement was not accepting responsibility for the accuracy of what was said. The nature and character of the disclaimer was, unavoidably, part of the factual circumstances, and part of the transaction. It clearly conveyed the issues where the valuers were, and were not, accepting responsibility. It read, as set out at page 209 of the Report:

        “1. These particulars do not constitute, nor constitute any part of, an offer or contract.

        2. All statements contained in these particulars, as to this property are made without responsibility on the part of Lane Fox or the vendors or lessors.

        3. None of the statements contained in these particulars, as to this property are to be relied on as statements of representations of fact.

        4. Any intending purchasers must satisfy themselves, by inspection or otherwise as to the correctness of each of the statements contained in these particulars.

        5. The vendors do not make or give, and neither Lane Fox, nor any person in their employment has any authority to make or give any representation or warranty what[so]ever in relation to this property.”

53. What could be clearer? The terms of that disclaimer were crystal-clear. Those auctioneers announced that they unconditionally disclaimed any responsibility for the contents of the brochure. The disclaimer negatived, in terms, one of the essential elements for the existence of a duty of care. The purchaser was told that, if he, or she, chose to rely upon the description contained in the brochure, they must realise that the auctioneers were not accepting responsibility for the accuracy of the representations. There was nothing opaque or ambiguous about what it said. It was not in small print. The contrast with the disclaimer in the present case is self-evident.

54. To my mind, the trial judge carefully analysed each of the principles identified in Wildgust. He held the foreseeability and proximity tests to be satisfied. He was satisfied there was communication to a member of an identifiable class who would rely upon it. Correctly in my view, he held that the waiver carried with it a representation from a firm of the highest integrity that every care had been taken in preparing the brochure. He concluded on cogent evidence that the information given was for a specific purpose, actually made known to the purchaser, in circumstances where the firm should have known that the information would be relied on, and acted upon. He held on the facts that the remainder of the disclaimer had no legal efficacy. I would uphold the judgment of the High Court, and dismiss the appeal.


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URL: http://www.bailii.org/ie/cases/IESC/2017/S38.html