Frank Brownrigg v Aidan Leacy and Another

JudgeMr Justice Hedigan
Judgment Date20 September 2013
Neutral Citation[2013] IEHC 434
Docket Number[No. 7356P/2009]
CourtHigh Court
Date20 September 2013

[2013] IEHC 434


[No. 7356P/2009]
Brownrigg v Leacy (t/a Phoenix Estates) & Ben Kavanagh Auctioneers Ltd


Frank Brownrigg


Aidan Leacy
Carrying on business under the style of Phoenix Estates


Ben Kavanagh Auctioneers Limited




ESSO PETROLEUM CO LTD v MARDON 1976 QB 801 1976 2 WLR 583 1976 2 AER 5

Negligence - Land Valuation - Duty of Care - Claim for damages - Purchase of land pending sale of other lands - Contributory negligence

This case concerned a claim for damages in respect of land valuations carried out by the defendants. The plaintiff, a farmer from Wexford, was the owner of a 120 acre farm home. He was also the owner of a 46 acre farm, and a 28 acre farm, both situated in Clonhaston. Following the death of a neighbour who owned farmland adjacent to the plaintiff”s Wexford home, the plaintiff wished to purchase this farmland (the Coolbawn lands). Financially, this required the sale of the Clonhaston lands. In order to carry this out, the plaintiff sought valuations from the defendants in respect of these lands.

The first named defendant estimated the value of the Clonhaston properties as between €220,000 and €240,000 per acre, the total value being between €10,120,000 and €11,040,000, and advised the plaintiff that the value was likely to increase to more than €350,000 per acre. This estimate was confirmed in writing. Mr Leacy submitted that this letter was a ‘thinking of buying letter’ rather than a valuation. The plaintiff obtained a second valuation from the second named defendant, Mr Kavanagh, who valued the land at €6.9 million. Acting on the valuations, the plaintiff acquired a bank loan for €7.7 million to purchase the Coolbawn lands which would be financed pending the sale of the Clonhaston farms. He purchased two lots of the Coolbawn lands for €5.9 million. He was, however, unable to sell the Clonhaston properties, and therefore could not raise the money to purchase the Coolbawn lands. His deposit was forfeited, and the Coolbawn lands were resold.

Held by Justice Hedigan, there were numerous issues to be decided. Firstly, was the first defendant aware that the plaintiff would rely on his letter as a valuation? Secondly, was this letter intended to be a valuation? Thirdly, was the letter prepared through negligence? Fourthly, did the plaintiff rely on the first valuation, the second valuation, or both valuations? Also at issue were the questions of whether the plaintiff was responsible for his own misfortune, and the measure of damages.

It was held that the conduct of the parties meant that the letter was something the plaintiff intended to rely upon, and that the letter was intended to be a valuation. Accepting the expert advice of Mr Shorten, the court also decided that the valuation was ‘totally out of keeping’ with the standard €2.2 million valuation of the property, and was indeed negligently prepared. It was also held that the plaintiff relied on both valuations equally. Finally, in taking the risk of purchasing the Coolbawn lands pending the sale of the Clonhaston properties, the court held the plaintiff partly responsible for the resultant losses—to the extent of 50%. The court found that the defendants were each 25% responsible for the losses. The loss was determined to be the value of the deposit, that is, €590,000 plus interest.

The court therefore made an order in favour of the plaintiff that each defendant would be required to pay 25% of the €590,000 plus interest sum.

Mr Justice Hedigan

This case relates to a claim for damages by the plaintiff Mr Frank Brownrigg arising from the alleged negligence of the defendants in respect of valuations they carried out of his lands in 2007.


The plaintiff is a farmer and resides at Crory, Ferns, Co. Wexford. The first named defendant is Mr Aidan Lacey an auctioneer carrying on business under the name Phoenix Estates and the second named defendant is Ben Kavanagh Auctioneers Limited. The second named defendant has discharged his legal team and does not appear before the court.


The plaintiff owns a 120 acre farm at his home in Ferns Co. Wexford. He owns two other farms near Enniscorthy-one comprising 46 acres at Clonhaston, Enniscorthy and the other at Ballyorell, Enniscorthy which comprises 28 acres.


From 1996 to July 2006 the plaintiff also rented lands (73 acres) adjacent to the home farm, on Coolbawn farm which belonged to Mr Thomas Dunbar, the plaintiff's neighbour. Mr Dunbar died in 2006. The farm comprises 237 acres and was advertised for sale on the 16th May, 2007, to be sold at public auction on the 27th June, 2007.


The plaintiff wished to purchase those lands since they were adjacent to his own farm and would enable him to consolidate his holding. In order to finance the purchase of the lands he needed to sell his lands at Clonhaston.


To better consider the possible purchase of Coolbawn and the sale of his lands at Clonhaston the plaintiff sought valuations from the defendants in respect of his lands at Clonhaston. To this end, according to the plaintiff, in February 2007 he contacted the first named defendant who he claims attended the lands at Clonhaston in February/March 2007 and following this advised the plaintiff that the lands were valued somewhere between Euro220,000-Euro 240,000 per acre as unzoned lands giving a total value of between Euro 10,120,000 and Euro 11,040,000. A new local development plan for Enniscorthy was to issue shortly thereafter and the first named defendant advised the plaintiff that it was likely that the lands would be rezoned residential and would therefore increase in value to more than Euro350,000 per acre.


At the plaintiff's request the defendant put this in writing by way of letter dated the 18th June, 2007. In this correspondence the lands were described as "a very saleable commodity". Mr Leacy explained in evidence that in employing the word "saleable" he meant that if marketed properly the lands should get a good reaction from potential buyers. Mr Leacy states that he was unaware that the plaintiff intended to bid at auction or that this was the purpose of the plaintiff seeking a valuation.


The defendant also contends that the first he ever heard from the plaintiff about Clonhaston was in May 2007 not in February 2007 as indicated by the plaintiff, and asserts that any contact between the parties prior to May was in respect of enquires made by the plaintiff about the purchase of residential property.


In this regard the plaintiff has made discovery of his phone records, showing calls made to the first named defendant from February 2007, to June of that same year. Evidence was shown to the court that on the 2nd February, 2007, the plaintiff made a call lasting 8 minutes 21 seconds to the defendant's landline. The plaintiff asserts that it was made regarding the sale of Clonhaston. The defendant however contends that it was in relation to the purchase of residential property. The defendant argues that only calls received from the plaintiff after the end of May 2013 were in relation to Clonhaston and accepts that those were to discuss the letter of the 18th June 2007- what he terms a "thinking of selling letter". He explained that a "thinking of selling" letter is drafted for someone who is thinking of selling their property however it does not go into detail about the method of sale, the cost of selling, the possible division of the lands into lots etc.


The plaintiff asserts that he requested Mr Leacy to look for a buyer for the lands without advertising them and Mr.Leacy was to get 1% of the sale price if he sold. Mr Leacy denies that he was ever retained by the plaintiff either to advertise or sell the lands and says that if he had been that fact would have been mentioned in his letter of the 18th June. He argues that if he were instructed to sell the lands he would have required a map of the lands (which he was never given) and he would obtain aerial photographs of the lands, maps to identify the land, and proof of identity of the owner.


The plaintiff asserts that two parties (the identity of whom he was unaware) had shown interest in the lands to Mr Leacy but nothing came of it. He believes that one person offered E120K/acre on the 20th June, 2007, which offer was communicated to him. However, Mr Leacy disputes the assertion that he had two potential buyers or had any offer. He argues that if he had received an offer he would have contacted the plaintiff since he would have been seeking his 1%.


The plaintiff also sought and obtained a valuation from the second named defendant, Mr Kavanagh whose services were recommended to him by a mutual friend. The plaintiff received a written valuation from him on the 20th June, 2007, valuing the holding at E6.9 million. The plaintiff asserts that, at Mr Kavanagh's suggestion, he agreed to place an advert for the sale of the lands in the Irish Independent. Mr Kavanagh, according to the plaintiff, said he got 4-5 calls of interest from the north east of the country but it went no further.


The plaintiff's plan was to sell Clonhaston following his purchase of Coolbawn. He explained in evidence that he did not wish to sell Clonhaston first since if his bid for Coolbawn was not successful he would lose his lands and not gain Coolbawn. This would mean the loss of a feed source for his animals requiring him to buy in feed for them. He said he had invested heavily in milk quotas. Consequently, he required a loan from AIB in order to finance the purchase of Coolbawn pending the sale of the lands at Clonhaston. The plaintiff asserts that the...

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