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:
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:
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.
