Rosbeg Partners v LK Shields (A Firm)
| Jurisdiction | Ireland |
| Judge | O'Donnell Donal J.,McKechnie J.,Dunne J. |
| Judgment Date | 22 November 2016 |
| Neutral Citation | [2016] IESCDET 143 |
| Judgment citation (vLex) | [2016] 11 JIC 2203 |
| Court | Supreme Court |
| Date | 22 November 2016 |
[2016] IESCDET 143
SUPREME COURT
DETERMINATION
O'Donnell Donal J.
McKechnie J.
Dunne J.
This is an application for leave to appeal against the decision of the Court of Appeal (MacMenamin J, Finlay Geoghegan and Irvine JJ concurring), of the 1st of June 2016 [2016] IECA 161, in which it dismissed the appeal against the judgment and order of the High Court (Peart J delivered on the on 8th day of November 2013 [2009] IEHC 494), which awarded to the plaintiff the sum of €11,077,209 million together with costs in respect of professional negligence. Negligence was not an issue in these proceedings. The issue therefore was the assessment of damages and in particular questions of causation and mitigation of loss. The judgments of the High Court and the Court of Appeal are readily available. Furthermore, the defendant/appellant's application and the plaintiff/respondent's notice are also published as part of this determination process. Accordingly it is not necessary to set out in great detail the facts of the case.
It is sufficient to say that the defendant firm of solicitors acted for the plaintiff company when it acquired property in 1994. The property consisted of five different lots having five separate titles. Lot 3 was partly unregistered and registered title. The registered component was part of Folio 23011F. It is a basic component of a purchaser's solicitor's duty to secure the registration of the title of the purchaser in the Land Registry in respect of registered land. The vendor's solicitors had provided an undertaking to cooperate with Land Registry queries. An application was made to register the title. Queries were raised, there was further correspondence, and pursuit of the vendor's solicitors, but by March 2000 the defendant's file was inactive. Activity only resumed in September 2007 in the circumstances giving rise to these proceedings. There is no doubt and it is not contested that the failure of the solicitors to complete the registration was negligent.
In late 2007 negotiations were entered into by the plaintiff with an adjoining land owner, and successful businessman, to sell the lands. It should be said that at this point, the original vendor to the plaintiff company had sold its remaining lands in Folio 23011F to another purchaser. Because there had been no registration of the plaintiff's interest and subdivision of the folio, there was no record in the Land Registry of the plaintiff's ownership of that portion of the lands in Folio 23011F which had been sold to it and indeed it appeared that all the lands in that folio were owned by another party. However, it is accepted that at all times the plaintiff company had title to all the property including that portion in Folio 23011F, that the difficulty involved was securing the registration of its ownership, that that task posed no insuperable problems but could take some time. Furthermore it appears to have been agreed that it would be possible to sell the lands without first securing the registration if the contract for sale was appropriately drawn and special conditions inserted.
In late September 2007 the plaintiff's received an offer of €10m from the adjoining landowner to purchase the entire property, subject to contract, and subject to confirmation of a total site area. The High Court judge found that the plaintiff company had decided to accept this offer, and furthermore that the fact that no map had been lodged with and accepted by the Land Registry meant that it was not possible to confirm the total site area. The judge found that if the title had been properly registered, this transaction could have been speedily concluded. While it was accepted it was possible to conclude an agreement subject to appropriate conditions, the process did not proceed. Instead the plaintiff set about regularising the registration of the property in the Land Registry, and contact with the prospective purchaser continued against the background of a property market that was starting its decline. The plaintiff company received further offers of €8 million and €6 million from the same prospective purchase, neither of which were accepted. In August 2008 the plaintiff company was invited to give the minimum price which they would accept for the property. The plaintiff indicated it would be prepared to sell it at a price of €8.5 million. The prospective purchaser was not willing to pay more than his last offer of €6 million. At or around this point the plaintiff's title was registered and therefore the lack of registration could no longer be said to be an inhibition to sale. Indeed, the continued contact and the further offers indicated as much.
It was at all times accepted that the prospective purchaser was the person likely to pay most for the site because he owned the adjoining lands. By the date of commencement of the proceedings the value of the property had dropped to €2.5 million, and by the date of the hearing in the High Court the judge accepted the defendant's evidence that the land was worth €1.5 million. The High Court judge held that it was...
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Rosbeg Partners v LK Shield Solicitors
...and Irvine JJ.), which dismissed the appeal (see [2016] IECA 161). The defendant was granted leave to appeal to the Supreme Court (see [2016] IESCDET 143). The defendant also brought a motion before the Supreme Court seeking to admit fresh evidence that had come to light subsequent to the H......