Walsh v Jones Lang Lasalle Ltd

JurisdictionIreland
CourtSupreme Court
JudgeO'Donnell J.,Ms. Justice Laffoy,Mr. Justice John MacMenamin
Judgment Date01 June 2017
Neutral Citation[2017] IESC 38
Docket Number[Supreme Court No.: 69/2007] [Appeal No. 69/2007]
Date01 June 2017

[2017] IESC 38

THE SUPREME COURT

O'Donnell Donal J.

Laffoy J.

MacMenamin J.

O'Donnell Donal J.

McKechnie J.

MacMenamin J.

Laffoy J.

O'Malley Iseult J.

[Supreme Court No.: 69/2007]

[Appeal No. 69/2007]

Between:
David Walsh
Plaintiff/Respondent
And
Jones Lang Lasalle Limited
Defendant/Appellant

Negligent misstatement – Liability – Damages – Appellant seeking to appeal against finding of liability – Whether Wildgust & anor v Bank of Ireland & anor [2006] 1 IR 570 provides justification for adopting an approach which would involve a dramatic departure from the law of negligent misstatement

Facts: The High Court, after a two-day hearing in November, 2006, delivered judgment in January, 2007 ([2007] IEHC 28), awarding the plaintiff/respondent, Mr Walsh, a property investor, €350,000 in damages in respect of a negligent misstatement in particulars contained in a sales brochure produced by the defendant/appellant, Jones Lang Lasalle Limited, a well known firm of estate agents and auctioneers. The defendant appealed to the Supreme Court against the finding of liability only. There was no appeal in relation to quantum.

Held by O’Donnell J, O'Malley Iseult J concurring and Laffoy J also handing down a judgment, that Wildgust & anor v Bank of Ireland & anor [2006] 1 IR 570 did not provide justification for adopting an approach to this case which would involve a dramatic departure from the law of negligent misstatement, which has existed since it was first identified in Hedley Byrne v Heller [1964] AC 465 and approved in Ireland in Securities Trust Ltd. v. Hugh Moore & Alexander Ltd [1964] IR 417 and Bank of Ireland v Smith & Ors [1966] IR 646. O’Donnell J held that if that step is to be taken it would require more elaborate consideration (and by a full court) than was involved in this case or, indeed, in Wildgust.

O’Donnell J held that since, on the established test, the plaintiff should not have succeeded, the Court would allow the defendant’s appeal. McMenamin J and McKechnie J dissented.

Appeal allowed.

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

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

Facts
2

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

3

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

‘2,142 m2 (23,057 sq ft)

Site Area 0.13 Hectares (0.31 Acres)’.

There were some further details as to location and zoning and the names of persons within Jones Lang Lasalle who could be contacted about the premises. At the bottom of the page in smaller print (although roughly the same size print as the name, address and telephone and email details of Jones Lang Lasalle at the top of the page, and certainly not illegible) was the following disclaimer:

‘Whilst every care has been taken in the preparation of these particulars, and they are believed to be correct, they are not warranted and intending puchusers (sic) /lessees should satisfy themselves as to the correctness of the information given.’

The core fact in this case is that the measurement of the premises (23,057 sq ft) was incorrect. The legal issue is whether, in the light of the disclaimer, the estate agents are liable to the plaintiff in respect of that misstatement.

4

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

5

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

The Brochure
6

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

For Sale (By Private Treaty)

Excellent Redevelopment Opportunity’.

Underneath the photograph in slightly smaller type were the words:

‘77 Upper Gardiner Street

Dublin 1

2, 142m2 (23,057 sq ft)

Site Area 0.13 Hectares (0.31 Acres)’.

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

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

• Zoned Z8 ‘primarily residential and compatible office and institutional uses’’.

After a space were the words:

‘Contact: Nigel Healy, Woody O'Neill or David Browne’.

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

7

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

Location

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

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

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

Description

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

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

Accommodation
M2 Sq Ft

Ground Floor 1,170 12,594

First Floor 972 10,463

Total 2,142 23,057

Site Area 0.13 Hectares (0.31 Acres)
Opportunity

• Provides an excellent redevelopment opportunity and, subject to the necessary planning permission, would be ideally suitable for residential, commercial or mixed...

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