Walsh v South Tipperary County Council

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Clarke
Judgment Date19 December 2011
Neutral Citation[2011] IEHC 503
Docket Number[2009 No. 3565P]
Date19 December 2011

[2011] IEHC 503

THE HIGH COURT

[No. 3565 P/2009]
Walsh v South Tipperary Co Council

BETWEEN

JOHN WALSH AND PATRICIA WALSH
PLAINTIFFS

AND

SOUTH TIPPERARY COUNTY COUNCIL
DEFENDANT

GLENCAR EXPLORATIONS PLC & ANDAMAN RESOURCES PLC v MAYO CO COUNCIL (NO 2) 2002 1 IR 84

BEATTY v RENT TRIBUNAL 2006 2 IR 191 2006 1 ILRM 164 2005/4/623 2005 IESC 66

SUNDERLAND v LOUTH CO COUNCIL 1990 ILRM 658 1990/5/1303

X (MINORS) v BEDFORDSHIRE CO COUNCIL 1995 2 AC 633 1995 3 WLR 152 1995 3 AER 353

MINISTRY OF HOUSING & LOCAL GOVT v SHARP & ANOR 1970 2 QB 223 1970 2 WLR 802 1970 1 AER 1009

HANDLEY & ORS ACTIONABLE MISREPRESENTATION 4ED 2000 296

REEMAN v DEPT OF TRANSPORT & ORS 1997 2 LLOYDS 648 1997 PNLR 618

PERRE & ORS v APAND PTY LTD 198 CLR 180 164 ALR 606 1999 HCA 36

MCMAHON & BINCHY IRISH LAW OF TORTS 3ED 2000 PARA 3.32

OVERSEAS TANKSHIP (UK) LTD v MORTS DOCK & ENGINEERING CO (THE WAGON MOUND) 1961 AC 388 1961 2 WLR 126 1961 1 AER 404

DORAN v DELANEY T/A MICHAEL J DELANEY & CO & ORS (NO 2) 1999 1 IR 303 1999 1 ILRM 225 1998/17/6459

NEGLIGENCE

Duty of care

Public authority - Negligent misstatement - Duty of care owed by public authority - Whether public authority liable for damages for negligent misstatement - Legal status of letter written by public authority - Whether plaintiffs entitled to rely on content of letter not written to them - Damages - Foreseeability - Remoteness - Whether loss suffered was foreseeable - Ministry of Housing and Local Government v Sharp [1970] 2 QB 223 considered; Perre v Apand PQI Ltd [1999] HCA 36, [1999] 198 CLR 180, Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co. Ltd (The Wagon Mound) [1961] AC 388 and Doran v Delaney (No 2) [1999] 1 IR 303 followed; Glencar Exploration Plc v Mayo County Council (No 2) [2002] 1 IR 84, Beatty v The Rent Tribunal [2005] IESC 66, [2006] 2 IR 191, Sunderland v Louth County Council [1990] ILRM 658 and Reeman v Department of Transport [1997] 2 Lloyd's Rep 648 distinguished - Damages awarded (2009/3565P - Clarke J - 9/12/2011) [2011] IEHC 503

Walsh v South Tipperary County Council

Facts: A mistake was made by South Tipperary Council in issuing a letter of certificate in respect of a public right of way. In the course of the conveyancing transaction the error was discovered . The transaction closed ultimately but on less advantageous terms. The Walshes brought proceedings against South Tipperary Council who acknowledged that a mistake was made. The question arose as to whether an action in damages was possible and the extent of the liability of the local authority , as well as whether the Walshes should have doubted the validity of the certificate. They claimed damages under four headings amounting to Eur 300,000, including relating to the loss of value and delay in closing and extra legal costs accruing from the error.

Held by Clarke J. that the Walshes were entitled to recover Eur 150,000. The character or nature of the losses was foreseeable. If they had invoked the arbitration clause a reasonable outcome could have been expected to have reduced their losses to an amount of Eur 150000. The Court was not convinced that the failure to accept the offer of placing Eur 20,000 on joint deposit accounts was a failure to mitigate. The Walshes had been out of money since January 2009 and were entitled to Courts Act interest from 1 February 2009 to date.

Reporter: E.F.

1. Introduction
2

2 1.1 Access to land is an important question, not least in rural areas. In those circumstances it is hardly surprising that checking the legal entitlement of a prospective landowner to have the specified access to land under purchase forms an important part of the task of a conveyancing solicitor employed on behalf of the buyers of land. The legal entitlement to have access to any particular plot of land can, of course, derive from either public or private rights. In simple cases the land may have direct access onto an acknowledged public roadway. In more complicated cases, particularly in rural areas, it may be necessary to investigate whether an important part of the access to the lands in question over small lanes or minor roadways is to be found in a public right of way or a private right of way. It will be necessary to address some of the differences between public and private rights of way in due course.

3

3 1.2 However, in the context of a case where it is said that access is to be obtained over a public right of way, it has become standard practice amongst conveyancing solicitors to seek, on behalf of a buyer, that the seller procure an appropriate from of letter or certificate from the local authority in which the land in question is situate confirming the existence of a public right of way. It is also standard practice among conveyancing solicitors that such a letter then forms part of the documents which are retained as evidence of the title of the buyer and can be used where the buyer sells on the property on a subsequent occasion. While the precise legal status of such letters or certificates may be a matter of some legitimate debate, it seems to me that they can, at least, be described as quasi documents of title.

4

4 1.3 That description of the way in which buyers satisfy themselves as to the existence of public rights of way (which may be of some relevance to their access to the land which they seek to buy) forms the backdrop to these proceedings. It is agreed that a mistake was made by the defendant ("South Tipperary Council") in issuing a letter or certificate in respect of a public right of way at Roosca, Cahir in County Tipperary. The letter in question had been written by South Tipperary Council to the solicitors who acted for a predecessor in title of the plaintiffs ("the Walshes" and, where relevant, "Mr. Walsh"). The letter formed part of the documents schedule supplied to the Walshes' solicitor when they agreed to buy the lands in question (which were comprised in Folio No. 4701F County Tipperary) by contract of the 1 st July, 2005. The letter specified that a particular laneway, which provided one of two means of access to the lands comprised in that folio, had been taken in charge by South Tipperary Council.

5

5 1.4 Some three years later the Walshes decided to sell the property under, it would appear, some pressure from their bank. In the course of that conveyancing transaction the error was discovered in circumstances to which it will be necessary to refer. The transaction ran into trouble as a result of that error with the consequence that the sale ultimately closed but on significantly less advantageous terms.

6

6 1.5 In those circumstances the Walshes bring these proceedings claiming damages against South Tipperary Council. Against that general background it is necessary to turn to the issues which arise.

2. The Issues
2

2 2.1 As pointed out earlier, South Tipperary Council acknowledges that a mistake was made. The circumstances giving rise to the mistake were established in the evidence. It would appear that, from the early days of this State, county councils kept a book and maps in which were recorded all public rights of way. Where new roadways were taken in charge by the relevant local authority, particulars of the additional public right of way were recorded in the relevant books by reference to an appropriate map. On the rare occasions where a public right of way was extinguished, appropriate deletions were made. It would seem that, in the early years of this century, a decision was made to transfer the content of that hard copy information onto an appropriate digital database. The roadway which is at the heart of these proceedings runs from a local, undoubtedly public, road up to an entrance to the lands which were, between 2005 and 2009, owned by the Walshes. The end of the roadway is at a location of those lands where a number of largely disused buildings are to be found. Approximately halfway along the roadway in question there are farm buildings and entrances associated with another landowner in the area who, by coincidence, is also called Walsh. The evidence established that, in reality, the public right of way only went from the main local public roadway as far as those farm buildings and that the balance of the roadway was over lands owned by the second Mr. Walsh, but with a private right of way in favour of the lands comprised in Folio 470IF. Unfortunately, it appears that when the hard copy maps which formerly recorded the scope of public rights of ways in the area were being transferred onto the digital version to which I have referred, an error was made which caused the entire roadway to be included as a public right of way when, properly speaking, only the first half of that roadway should have been so included. It follows that, when an appropriate official of South Tipperary Council was asked, by the solicitor acting for the predecessor in title to the Walshes (a Mr. Rolf Assmuss) to certify the public right of way in question, that official consulted the database and was misled by the error on that database into believing that the entire roadway was taken in charge. On that basis the letter which is at the heart of these proceedings was issued. For completeness it should also be noted that, when the question of the extent of the public right of way over the roadway was raised by the purchaser from the Walshes, the matter was again taken up with South Tipperary Council. The initial response was to confirm that the public right of way extended to the whole of the roadway presumably because the official then consulted was also misled by the inaccurate database. It was only after a direct contact was made, between an engineer employed by the purchaser and a senior official in the Roads Department of South Tipperary Council, that the error was...

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