Doran v Delaney

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Keane J.,BARRON J.
• Judgment Date: 09 March 1998
• Neutral Citation: [1998] IESC 66
• Docket Number: [S.C.,364/95
• Date: 09 March 1998

DORAN v. DELANEY

BETWEEN

TERENCE DORAN AND MAUREEN DORAN

Plaintiffs/Appellants

and

MICHAEL J. DELANEY practising under the style & titleof MICHAEL J. DELANEY & CO

Defendant/Respondent

and

MARTIN GREEN AND ELIZABETH GREEN

Defendants

and

JOSEPH F. MAGUIRE AND DELLA POWER practising under thestyle & title of JOSEPH MAGUIRE & COMPANY

Defendants/Respondents

[1998] IESC 66

Barrington, J.

Keane, J.

Barron, J.

364/95

THE SUPREME COURT

Synopsis

Negligence

Professional negligence; breach of contract; conveyancing; inaccurate reply to requisitions; vendors solicitor failed to inform solicitors for the purchasers of a boundary dispute which caused land to be landlocked; whether solicitor for the vendors liable for breach of duty; consideration of duty of care owed by a solicitor to third parties; whether a solicitor could be liable to third party by reason of transmitting in good faith information furnished by his client; whether third party relied on the information

Held: Breach of duty of care by vendors solicitors

Doran v. Delaney - Supreme Court: Barrington J., Keane J., Barron J. - 09/03/1998 [1998] 2 IR 61 - [ 1998] 2 ILRM 1

Citations:

MIDLAND BANK PLC V CAMERON TONG PETERKIN & DUNCAN 1988 SLT 611

JACKSON & POWELL PROFESSIONAL NEGLIGENCE (1992) PARA 4–72

HEDLEY BYRNE & CO V HELLER & PARTNERS LTD 1964 AC 465

WALL V HEGARTY 1980 ILRM 124

ALLIED FINANCE & INVESTMENTS LTD V HADDOW & CO 1983 NZLR 22

MCCULLAGH V LANE FOX & PARTNERS LTD 1994 8 EG 118

NOCTON V LORD ASHBURTON 1914 AC 972

GRAN GELATO V RICHCLIFF (GROUP) LTD 1992 CH 560

1 Judgment delivered the 9th of March, 1998by Keane J. [BARRINGTON AGR]

Introduction

2 In September 1990, the plaintiffs agreed to buy a site near Greystones in County Wicklow, on which they hoped to build a house, from the third and fourth named defendants (hereafter "the vendors"). They employed the first named defendant (hereafter "theplaintiffs" solicitor") to act as their solicitor in the purchase: the vendors were represented by the fourth and fifth named defendants (hereafter "the vendors" solicitors").

3 The property was sold with the benefit of a planning permission from Wicklow County Council for the erection of a dormer-style bungalow. After the sale had been closed, the builders (Ballymore Homes Limited) began work on the site. They entered the site from a private roadway which served three existing dwellings. One of the householders having objected to the builders using that roadway, the first named plaintiff and the builders decided to enter the site from the main road, in the belief that the site sold to the plaintiffs had a frontage on to that road. For the purpose of gaining access, the builders knocked down part of the boundary wall.

4 At that stage, the plaintiffs and their builders were notified by the adjoining landowner, Mrs. McKimm, that the area in question was in her ownership and was not part of the site sold to the plaintiffs. It then emerged that there was a discrepancy between the boundaries of the site sold to theplaintiffs as delineated on the map lodged with the application for planning permission and the boundaries as delineated on the Land Registry map of the land comprised in the two folios which constituted the legal title of the vendors to the site. The former erroneously included a triangular area of fifty four square metres as being included in the vendors" site. That triangular area included the road frontage the plaintiffs" builders were using to get access to the site. Without that frontage, they were unable to get access to the site, save along the private roadway, which was also not available because of the refusal of one of the householders to consent. Apart altogether from the problem of access, the discrepancy between the planning map and the Land Registry map clearly raised a question as to the validity of the planning permission, since it purported to extend to land which was not owned by the vendors.

5 The plaintiffs then initiated negotiations with Mrs. McKimm with a view to acquiring the fifty four square metres. Those negotiations eventually proved abortive and the plaintiffs thereupon abandoned their plan to build the dormer bungalow and sold the site to one of the adjoininghouseholders.

6 Before the plaintiffs signed the contract for the purchase of the site, their builder had advised them that, since there was no physical boundary between their site and the adjoining land, it should be staked out. The plaintiffs" solicitor was asked by them to include such a condition in the contract, but he advised that it would be sufficient to stipulate that an ordnance survey mapwith the boundaries marked thereon be provided. The vendors"solicitors objected to that condition and the plaintiffs"solicitor agreed to omit it without, it would seem, so informing theplaintiffs.

7 The plaintiffs instituted these proceedings claiming damages for negligence, breach of duty and breach of contract against theplaintiffs" solicitor and for negligence, breach of warranty and misrepresentation against the remaining defendants. The action was heard by Hamilton P., as he then was, who in a reserved judgment found both the plaintiffs" solicitor and the vendors liable in damages, but dismissed the claim against the vendors" solicitors. The plaintiffs have appealed to this court from the dismiss of their claim against the vendors" solicitors, the assessment of damages having been deferred pending the hearing of the appeal.

The Factual Background

8 The facts must now be considered in more detail.

9 The vendors bought the site in April 1989 from a company called Roheryn Limited. The first named vendor applied to Wicklow County Council for permission to erect a two storey dwelling on the site and a decision to grant such permission was made on the 19th July 1989. On the 25th July 1989, the solicitors acting for Mrs. McKimm, Cunningham & Company, wrote to the first named vendor as follows:-

"We are instructed by our client that you have encroached upon her above mentioned lands."

"We hereby give you notice that if you do not immediately withdraw from her property that we shall have no alternative but to apply to court for an injunction restraining you from the continued trespass and apply to have your planning permissioninvalidated."

"Please note that we shall apply to the courts to have the full costs of her application awarded against you."

10 They wrote again on the 29th August to the first named vendor saying that their client had, with her engineer, staked out the correct boundary lines of her property "per up to date ordnance survey sheet". The vendors" solicitors replied on the 4th September, disputing the assertion that the boundary as staked out was correct and enclosing a copy of "our client's ordnance survey map" which was described as "the correct map". Cunningham & Company replied on the 19th September, saying that it was possible that the Land Registry map was not accurate. Thevendors" solicitors replied on the 26th September 1989 asfollows:-

"From our instructions it is quite clear that the actual boundaries on the site itself support our client and his belief that the Land Registry map is correct."

11 Cunningham & Company replied on the 21st November 1989 asfollows:-

"We refer to our letter of 26th September last. Our client's architect has checked the map furnished by your client and compared same with the planning documents as lodged by your client in Wicklow County Council. There is no doubt in his view that there are discrepancies as between these maps and as between the planning map and the site on theground."

"It would appear to our client's architect that your client has obtained planning permission on the basis of incorrectinformation."

"If your client does not take immediate steps to retreat from our client's land then she will have no alternative but to applytoWicklow County Council to have your client's planning permission quashed. Please be in no doubt that our client will be seeking the costs of this action and any legal action required from yourclient."

12 Having informed their clients of this development, the vendors"solicitors retained, on their instructions, a firm of civil engineers and architects, David L. Semple & Associates, to check the boundaries of the site on their behalf. Mr. Semple of that firm duly carried out the inspection and reported as follows to the vendor's solicitors by letter on the 1st February 1990:

"I met with (the first named vendor) on site and we looked at the various maps. The only interesting point is that part of its northern boundary which is the top of the triangle where map ref. 151 is marked in and where it borders the property with the house on it (ruin). I gave him measurements so that he could set out a point on the ground corresponding with where the former boundary fence met the roadside fence and I was to have a look at it. I haven't heard from him asyet."

"I think when this is done we should put in a series of pegs and then invite the people on both sides who are getting agitated including the old ladies in Chrysanthemum Cottage (Gunning - Bill Jolley of Bowler Geraghty acts for them) to inspect the boundary and if everybody is in agreement then your client can start tobuild."

13 Mr. Semple went on to make some comments on the difficulties the vendors might encounter in building their house, since the ground had been built up and the foundations might turn out to be expensive. Thevendors" solicitors reported to the vendors as follows on 8th February 1990.

"I confirm that we have now received correspondence from David Semple who informs me that he is giving new measurements so that you set out a point on the ground corresponding to where the former boundary fence met the roadside fence."

"He informs me that you are to contact him once that has been done and...