Supreme Court dismisses appeal against negligence claim where clear disclaimer failed to negate duty of care for erroneous brochure statement.

THE SUPREME COURT

[Appeal No. 69/2007]

O’Donnell J.

McKechnie J.

MacMenamin J.

Laffoy J.

O’Malley J.

BETWEEN:

DAVID WALSH

PLAINTIFF/RESPONDENT

AND

JONES LANG LaSALLE LIMITED

DEFENDANT/APPELLANT

Judgment of Mr. Justice John MacMenamin dated the 1st day of June, 2017

1. The appeal before the Court raises issues of some importance. The Court must assess how the law of negligent mis-statement is to

be applied in the case of an auctioneers’ brochure that contained an incorrect statement in an exemption clause, to the effect that

“every care” had been taken in its preparation. A further question is no less significant: that is, the application here of the

established jurisprudence of this Court to the effect that findings of fact made by a trial judge are binding, unless there was no

evidence to support such findings.

2. In a judgment delivered by the High Court on the 24th January, 2007. Quirke J. found the appellant firm (the defendant, or JLL)

liable to pay the respondent, (the plaintiff, or Mr. Walsh), €350,000 in damages on foot of its negligence and negligent mis-statement,

in the preparation of an auctioneer’s brochure. (See [2009] 4 I.R. 401). At the level of legal principle, the case might be perceived as

therefore necessitating a broad consideration of the legal issues in an area where the law of torts and the law of contract intersect.

In other instances, such a case might require consideration and analysis of the scope of liability for a negligent mis-statement;

whether there existed a “special relationship” creating a duty of care between the parties; whether the facts established that Mr.

Walsh was sufficiently proximate to JLL, so as to make him a person “reasonably likely to be affected” by the firm’s acts or omissions;

whether personal reliance on statements made by employees of JLL would be necessary for the recovery of damages; and lastly, but

importantly, whether JLL was entitled to rely upon what is said to be an exclusion or exemption clause printed at the base of one

page of the brochure issued by that firm for the purposes of the sale. But this case is less complex than that.

3. The essential facts of this case are quite simple. As long ago as July in the year 2000, Mr. Walsh (who then had 20 years

experience in the property market) decided to buy a two-storey north Dublin city centre commercial property. JLL sent him a

brochure. This described both the measurements of the ground floor, and those of the first floor of the property. But the

measurement of the first floor contained a very significant error. Contrary to what the brochure stated, it did not, in fact, measure

10,463 sq. feet, but instead, measured only 8,575.5 sq. feet. Mr. Walsh did not get what he paid for. He paid in excess of Ir.£2 million

for the property. As a result of the incorrect measurement, the property was significantly less valuable. The brochure did contain

what is said to be an exemption clause. The High Court judge was unimpressed with this clause. He described it as having been

placed in very small type at the bottom of the first page of the document. He held that it was not binding on the purchaser, on the

facts later described. Having held that a special relationship existed, and that the disclaimer in this case was insufficient to exonerate

the firm from liability, he found for the purchaser.

4. JLL has appealed that judgment. The “proximity issue”, in fact, does not present much difficulty. The critical point in the case is

largely contextual and fact dependent, that is, the presentation and terms of the disclaimer itself, when seen in their full context. The

key point there is not the existence of an exclusion clause, but rather the terms in which this clause is expressed, its location in the

brochure, and the other statements to be found in the brochure which were presented as highly factual. Thus, I see this appeal is

quite a narrow one.

5. The vexed issues of proximity and reliance in misrepresentation have recently been considered by this Court. (See Cromane

Fisheries Limited v. Minister for Agriculture & Others [2016] IESC 6, [2016] I.L.R.M. 81 delivered on the 22nd February, 2016; also,

Atlantic Marine Supplies v. Minister for Transport & Others [2016] IESC 43, [2016] 2 I.L.R.M. 397 delivered on the 19th July, 2016.

But for the purpose of this appeal, between two private parties to this commercial transaction, questions of proximity are to be seen

through the lens of the judgments delivered by this Court in Wildgust v. Bank of Ireland & Others [2006] 1 I.R. 570. The High Court

judgment relies heavily on the principles established there. The correctness of the judgments in Wildgust, and the principles expressed

therein, were not challenged in this appeal. It is, therefore, helpful now to set out what was established in that authority, and

compare the principles with their application in the instant case at first instance.

6. In Wildgust, Kearns J. pointed out at p. 593, par. 43 that, as long ago as Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964]

A.C. 465, a negligent, though honest, misrepresentation could give rise to an action for damages for financial loss, caused thereby, on

the basis that a duty of care was implied when a party seeking information from a party possessed of a special skill, trusted the

person imparting that information to exercise due care, when that party knew, or ought to have known, that reliance was being

placed on his or her skill and judgement. This Court held that, in respect of a negligent mis-statement, the proximity test included a

person of limited and identifiable class, when the maker of the statement could reasonably expect, in the context of a particular

enquiry, that reliance would be placed thereon by such persons to act, or not act, in a particular manner in relation to that

transaction. Concurring, Geoghegan J. held that personal reliance was not always essential, and that, for the purposes of the appeal,

he, for his part, would be prepared to assume that the law of negligent mis-statement fell into a separate code from the law of

negligent acts.

7. In Hedley Byrne, the only relationship alleged was between the enquirer and the person giving the information. In Wildgust,

Geoghegan J. expressed the view that the court’s finding (which related to information given to a third party also affected by the

incorrect information), was only a small extension of the principle that a court might hold there was a special duty of care when a

person, even one who was not the enquirer, was damaged as a consequence of an incorrect statement; and where the existence of

such an affected person, and the reasonable foreseeability of such damage, ought to have been present to the mind of the person

imparting the information. He held that, quite apart from contractual or fiduciary relationships, a duty of care in the making of a

statement may be held to arise in the context of “other special relationships”, which the court may find to exist in particular cases.

He held this duty might emerge when it was plain that the relationship was such that a party seeking information or advice was

trusting the other party to exercise such a degree of care as the circumstances required, where it was reasonable for the party

seeking information to do that, and where the imparter of information gave advice when he knew, or ought to have known, that the

enquirer was relying upon him.

8. Kearns J., who delivered the main judgment in Wildgust, cited with approval the judgment of the House of Lords in Caparo

Industries Plc. v. Dickman [1990] 2 A.C. 605. It is true that, in his speech there, at p. 620 – 621, Lord Bridge of Harwich expressed

the view, having regard to the development of the law in respect of negligent mis-statement, that:

“… The salient feature of all these cases is that the defendant giving advice or information was fully aware of the nature

of the transaction which the plaintiff had in contemplation, knew that the advice or information would be communicated

to him directly or indirectly and knew that it was very likely that the plaintiff would rely on that advice or information in

deciding whether or not to engage in the transaction in contemplation. In these circumstances the defendant could

clearly be expected, subject always to the effect of any disclaimer of responsibility, specifically to anticipate that

the plaintiff would rely on the advice or information given by the defendant for the very purpose for which he did in the

event rely on it. So also the plaintiff, subject again to the effect of any disclaimer, would in that situation reasonably

suppose that he was entitled to rely on the advice or information communicated to him for the very purpose for which

he required it.” (Emphasis added)

The appellants rely heavily on this passage. They say that it is clear that the existence and effect of the relevant disclaimer is crucial

in any given case.

9. I agree that the content and effect of a relevant disclaimer is crucial. However, to my mind, the passage just quoted must not be

understood to mean that “any” disclaimer of responsibility will necessarily exonerate a defendant, but rather, an “appropriate”

disclaimer should have that effect. (See the speech of Lord Goff of Chieveley in Henderson v Merrett Syndicates Ltd. [1994] 3 ALL.ER

506, at page 521, where that judge referred to an assumption of responsibility being negatived by an “appropriate disclaimer”.

Whether the disclaimer in this case was “appropriate” is one of the main issues of contention in the case. The learned trial judge held

that it was not appropriate, in the sense of being sufficient to exonerate the firm from liability. I agree with him, and would uphold this

decision in full.

10. This appeal, in my view, hinges on findings of fact made by the trial judge. These are to be assessed with reference to the tests

set out by McCarthy J. in Hay v. O’Grady [1992] I.R. 210, and Henchy J. in Northern Bank Finance Corporation v. Charlton [1979] I.R.

149. It is a common feature of both judgments that such findings, when supported by credible evidence, should not be disturbed by

an appeal court. I consider that this appeal is, essentially, a ‘fact case’, in particular as regards the judge’s finding as to the state of

knowledge of Mr. Walsh, and findings as to “market custom”. The judge’s assessments of the context and content of the disclaimer

clause were reasonable. But, because of the fact based nature of these considerations, it is necessary to rehearse the High Court

findings in rather more detail than might normally occur in an appeal of this type.

11. The judge’s analysis of the evidence began with matters which are not in controversy. He set out that the property was bought

for Ir.£2,342,000, in a sale completed on the 28th September, 2000, some three months after the brochure was given to Mr. Walsh by

a Mr. “Woodie” O’Neill, a valuer with JLL. Mr. O’Neill’s role was very significant, as will be seen. He was not called to give evidence. Mr.

Walsh already held other property on the northside of Dublin. He wished to buy this property to use as units for commercial tenants.

12. The property was put on sale early in July, 2000. Mr. Walsh visited it on the 13th July, 2000, and following that, went back for a

second visit. Mr. Walsh told his contact, Mr. O’Neill, that he was interested in buying, and Mr. O’Neill then gave him the sales

brochure, to which reference will be made later. On the 21st July, 2000, Mr. O’Neill wrote to Mr. Walsh, telling him a number of

prospective parties had shown interest, and that JLL had been instructed to finalise offers; and that, as a result, the firm had put a

deadline on “best offers” of 12 noon on the 28th July, 2000. This was one week from the date of Mr. O’Neill’s earlier letter on the 21st

July, 2000.

13. Mr. Walsh engaged a solicitor to examine the title. He retained a Dublin property surveyor, Mr. Val O’Brien, (who had worked for

him previously), to conduct an informal “conditions survey”. But Mr. O’Brien did not measure the dimensions of the property, nor did

Mr. Walsh ask him to do so. Mr. O’Brien testified that while he regularly carried out such pre-purchase surveys, he had never been

actually asked to measure the floor area of a property prior to the submission of offers to a vendor.

14. Mr. Walsh made his offer for the property in an undated handwritten letter, which he said was based upon a “back of the

envelope” calculation. This was predicated on the income he estimated he could receive as owner of the property, based on the rent

he could potentially receive both for the ground floor and the first floor, which was, at the time Ir.£20 per square foot. His offer for

the property was accepted.

Knowledge of the Disclaimer

15. The judge found that Mr. Walsh had been “generally aware” of the disclaimer contained in the JLL brochure, but could not recall

whether he had read it with any care. He had, however, noted that it contained a statement to the effect that JLL had “taken every

care” in preparing the brochure, and that, in his view, they were a firm of the utmost probity. The plaintiff testified that he had

purchased other properties on previous occasions, but had never had a building measured before making a purchase. He relied on JLL’s

reputation, credibility and integrity. The evidence was that viewings were designated to take place on Saturday afternoons, as the

property was in commercial use. Mr. Walsh testified that it would be difficult to carry on commercial life if everyone had to go round

with a measuring tape, so as to be sure of the measurements of premises which they were thinking of buying.

16. The plaintiff testified that his belief was that Mr. Woodie O’Neill had carried out a survey while the previous tenants were in the

premises. His belief was fortified by the fact that JLL were to be paid a substantial sum in commission if, and when, the property was

sold. The sale was completed on the 28th September, 2000. Between the acceptance and completion, Mr. Walsh did not requisition a

measurement survey. He said he continued to rely on the description and measurements which JLL had given to him. It is noteworthy

in passing that Mr. Walsh’s bank, who extended credit to him for this transaction, did not carry out a survey on the premises either.

This is to be seen in light of other evidence as to what was the then accepted practice among Dublin surveyors.

17. After the sale was completed, the property was let to the Commissioners of Public Works. This letting was negotiated over a

period of time, and involved substantial alterations. It was only then, that Mr. Walsh’s surveyor, Mr. O’Brien, discovered that the first

floor measurement was incorrect. By letter dated the 20th March, 2001, the surveyor informed Mr. Walsh that, in fact, the total floor

area of the property was 21,248 sq. feet, that is, 12,674.6 sq. feet at ground floor, but just 8,573.5 sq. feet - and not 10,463 sq.

feet - at the first floor level.

18. Mr. Walsh testified that, he was astonished when he received this information, because he had believed the floor area was 20%

greater, as a result of what JLL had said in the brochure concerning the sale. As to the disclaimer, he testified that his belief was that

such waivers contained in brochures were only intended to safeguard auctioneers from liability in respect of minor miscalculations, but

not otherwise. As a preface to what follows it is necessary to point out that it was established in evidence, and JLL acknowledged,

that none of the 10 or 12 other potential investors who looked at the property carried out a measurement survey either.

An Issue in the Case – “Customary Practice”, or “The Prudent Investor”

19. What was the custom and practice among Dublin valuers and surveyors at the time? Was it customary or prudent for investors to

require properties to be measured before making an offer? Was it negligent for Mr. Walsh not to requisition a survey?

20. On behalf of Mr. Walsh, Mr. Barry Smyth of De Vere White, Auctioneers, and Mr. Tony Rooney, another valuer, testified to the

effect that neither of them had ever encountered circumstances where such measurements had been required. Their evidence was

also to the effect that it was an understood matter that disclaimers used by most auctioneers were to be seen as covering only minor

discrepancies.

21. Two witnesses testified on behalf of JLL on these issues. Mr. Peter Rowan, a surveyor and valuer (who had formerly worked for

JLL), testified that a “prudent investor” should carry out a detailed inspection, and measure all floor areas, prior to purchase. Mr.

Rowan’s background was generally, in advising financial institutions in property transactions. His testimony was that it would be

neither normal, nor prudent, nor acceptable practice, to rely solely on the measurements contained in a sales brochure.

22. Mr. Nigel Healy, a director of JLL, testified to the same effect. Regarding the disclaimer, Mr. Healy testified, it was to be seen as a

form of “advice” to a purchaser to carry out inspections and property measurement as a form of due diligence. He said that the

measurements in the brochure were to be seen merely as a general guide. Mr. O’Neill did not give evidence. Thus, how the

measurements came to be placed in the brochure remained unexplained.

23. In this appeal, counsel for the appellant submitted that the trial judge had erred by not attaching sufficient weight to the fact

that Mr. Smyth had testified he would not contradict Mr. Rowan’s opinion on the prevalent practice as to measurement in Dublin. It is

said that the judge failed to have regard to the fact that Mr. Smyth had, in terms, “expressly deferred” to Mr. Rowan’s testimony. In

fact, although Mr. Smyth did use the word “defer”, I think the situation was slightly more nuanced. There was clear evidence as to

what was then common practice in the Dublin property market. Mr. Rowan’s evidence is to be seen at a number of levels. His

testimony was to the effect that it was neither acceptable nor prudent practice to purchase without measuring, nor was it normal.

24. Counsel’s note of the evidence shows that, in fact, the judge asked Mr. Rowan a number of rather searching questions regarding

his testimony. The judge pointed out to him that twelve potential purchasers had viewed the property, and that not one of those had

gone back to JLL to bring to that firm’s attention that there had been a discrepancy of approximately 2,000 ft. between what the

brochure said, and the actuality. The judge based his findings, in part, on inference from this evidence.

25. Counsel for the appellant also submitted that the trial judge did not adequately take into account evidence adduced by Mr. Nigel

Healy, and Mr. Rowan, to the effect that the disclaimer not only covered minor discrepancies, but rather all issues. In fact, this point

was addressed by the trial judge, in the context of his findings as to evidence regarding the common and accepted practice in the

Dublin property market in the year 2000. That evidence was to the effect that this understanding was that disclaimers related only to

minor discrepancies, and not all issues. His finding on this was a question of fact.

26. The appellants rely on the judgment of Walsh J. in O’Donovan v. Cork County Council [1967] I.R. 173, at 193. There, Walsh J.

observed, in the context of a medical negligence action, that if there was a common practice which had inherent defects, which

ought to be obvious to any person giving the matter due consideration, the fact that it was shown to have been widely and generally

adopted over a period of time, did not make the practice any less negligent. There are passages in the judgment of Henchy J. in

Roche v. Peilow [1985] 1 I.R. 232, at page 254, to similar effect. However, reliance on these two statements is apt to mislead,

because it might suggest that these questions, so important for determination in this case, were simply matters of law. In fact, this is

not so in this case. Having observed ([1967] I.R. 173 at 193) that “Neglect of duty does not cease by repetition to be neglect of

duty”, Walsh J. went on at p. 193 - 194 to enter the following caveat:

“… Furthermore, if there is a dispute of fact as to whether or not a particular practice is a general and approved

practice, it is a matter for a jury to determine whether or not the impugned treatment is general and approved

practice. In such circumstances, a jury would be told that if they find that there is such a general and approved

practice they must acquit the practitioner where there is not the qualification that I have referred to above. If some

witnesses say that a particular practice is a general and approved one, and other medical witnesses deny that,

then it is an issue of fact to be determined as any other issue of fact. This particular issue cannot be withdrawn

from a jury merely because the practice finds support among some medical witnesses, if there be others who deny the

fact that it is [a] general and approved practice.” (Emphasis added)

27. Thus, in this “post jury” era, whether or not adherence to a general custom constituted negligence, and whether it contained an

inherent defect, were matters for the trial judge to determine as questions of fact. He resolved these in favour of the plaintiff.

28. In giving judgment, the trial judge observed that JLL were a large firm, in existence for a considerable period of time, who had

justifiably acquired an excellent reputation for competence, probity and integrity in its business dealings. JLL held itself out as a

company with particular skills and expertise in the commercial property markets, both in Ireland, and elsewhere. It relied upon its

reputation for excellence in order to encourage prospective customers to avail of its services.

29. He held that the brochure was expressly designed to attract the attention of potential purchasers, in order to encourage them to

bid or tender against one another for the property; that the brochure was an integral part of the tendering process, with the explicit

intent of maximising the price which potential purchasers would pay; and that was issued with the implicit motivation of maximising

the fee which JLL would obtain upon the sale of the property. Thus, he concluded, it was to be expected that potential purchasers

would rely upon the information contained in the brochure when deciding whether or not to purchase. The brochure had been

published by JLL for the express purpose of influencing a limited number of identifiable persons, and the publication of the disclaimer

was immaterial to that fact. The judge held that Mr. Walsh was among the persons to whom the brochure was expressly directed. He,

(the purchaser), had been influenced by the information published within the brochure, and had relied on its contents, (including the

measurements), when calculating his precise bid or tender for the purchase of the property. He accepted the evidence adduced on

behalf of the plaintiff as to what was the general and approved practice in the Dublin market. These were specific findings of fact,

based upon credible evidence. It is obvious there was contrary evidence from Mr. Rowan: but here the trial judge’s role was pivotal.

The Brochure

30. The judge carefully analysed, in detail, the extent to which the property was described, in quite large type, on the front page of

the brochure, as being of “2,142 m2 - (23,057 square feet), with a site area of 0.13 hectares (0.31 acres)”. On the back page, the

brochure described the ground floor as having an area of 12,594 square feet, and the first floor as having an area of 10,463 square

feet. This gave rise to a total square footage of 23,057 square feet as set out on the brochure. Corresponding measurements were

provided in square metres.

31. Turning to the exemption or waiver clause, the judge pointed out that this was to be found at the bottom of the front page of

the brochure, in words, “in very small type”. (See [2009] 4 I.R. 401 at 404.) The clause read: “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 purchasers/lessees

should satisfy themselves as to the correctness of the information given.” In my view, his criticisms of the brochure were well

justified.

32. I now wish to explain, in a little more detail, other areas where, to my mind, the appellants’ submissions are legally misconceived.

While not mentioned in argument, the facts of this case are quite distinct from the those of Scullion v. Bank of Scotland Plc. [2011]

IWLR 3212, where the Court of Appeal of England and Wales held (at p. 3226 at par. 54) that it was to “be expected” that a

commercial purchaser would obtain an independent valuation (See Charlesworth on Negligence, Thirteenth Ed., Sweet & Maxwell,

2014, p. 31, paragraph 2-30). The findings of fact here are entirely different, and have been described.

33. To my mind, the judgments of the Court of Appeal in Yianni v. Evans [1982] QB 438, and Smith v. Bush [1990] 1 A.C. 831, must

be seen against their own quite distinct and different factual background. Unlike Yianni and Smith, this case does not concern

reliance on building society/surveyor statements, or representations from such sources. Thus, those judgments are not on point, and,

in any case, this appeal must be looked at from the standpoint of the findings of fact on the evidence. It is nowhere suggested that

the respondents’ evidence was not based on evidence. I see no reason to interfere with the judge’s findings on these questions. It is

necessary to next consider the disclaimer.

Assumption of Responsibility and The Disclaimer

34. In law and commerce, questions,such as assumption of responsibility, waiver and disclaimer clauses, have an importance which go

far beyond the narrow range of this case. Anyone who engages in an online commercial transaction will find that these clauses are

said to be part of the contract. To my mind, a clause of such potential importance must be very carefully analysed.

35. The appellants rely on the opinion of Lord Goff of Chieveley in Henderson v. Merrett Syndicates Ltd. [1994] 3 ALL.ER 506. Dealing

with the assumption of responsibility, he stated, at page 521:

“It follows that, once the case is identified as falling within the Hedley Byrne principle, there should be no need to

embark upon any further enquiry, whether it is “fair, just and reasonable” to impose liability for economic loss – a point

which is, I consider, of some importance in the present case. The concept indicates too that in some circumstances, for

example where the undertaking to furnish the relevant service is given on an informal occasion, there may be no

assumption of responsibility, and likewise that an assumption of responsibility may be negatived by an appropriate

disclaimer.” (Emphasis added)

36. The appellants also rely on a passage in White v. Jones [1995] 1 ALLER 691, at 715 - 16, where Lord Browne-Wilkinson, speaking

for the majority in the House of Lords, laid emphasis on the importance of the concept of assumption of responsibility, to the following

effect:

“Just as in the case of fiduciary duties, the assumption of responsibility referred to is the defendants’ assumption of

responsibility for the task not the assumption of legal liability. Even in cases of ad hoc relationships, it is the undertaking

to answer the question posed which creates the relationship. If the responsibility for the task is assumed by the

defendant, he thereby creates a special relationship between himself and the plaintiff in relation to which the law (not

the defendant) attaches a duty to carry out carefully the task so assumed.”

37. Counsel for the appellant points out that the disclaimer referred to the particulars of the sales brochure, and invited the

respondent to carry out the task of measuring the particulars himself. It is said it was open to the respondent to have the area

measured when the appellant facilitated him with surveying the property, but that he failed to do so.

38. In Patchett & Another v. Swimming Pool & Allied Trades Association Ltd. [2009] EWCA Civ. 717, the claimant suffered damages

when the contractor he had engaged to construct a swimming pool went into liquidation. Before retaining the contractor, the claimant

consulted a website which was maintained by the defendant which asserted that members of the Association were checked for

solvency when they became members, and their work was covered by a guarantee. It was not clear, however, that the builder was

not a full member. Lord Clarke M.R. found that there was no representation as to continuing solvency, and the claimants had not

taken the steps recommended by the website. To my mind, the nature of the representation and the extent of the invitation are to

be distinguished on the facts of this case.

39. In my view, the critical issue is not just the invitation; but, additionally, the representation, that is, the factual context against

which the invitation was conveyed. What is at issue are not only principles of law, but rather the application of those principles in the

context of the facts as found in this case. The true question here is, whether the facts, and in particular the brochure itself, created

a duty to take reasonable care to provide accurate information in the brochure. If JLL did owe that duty, then they breached it by

providing inaccurate figures.

40. If the disclaimer had been clear to the normal reader and, therefore, “appropriate”, I would entirely accept the appellants could

avoid liability. But, the trial judge held that the disclaimer, in its form, was a “quite inadequate means” of notifying prospective

purchasers that the seemingly precise measurements of the floor areas, so prominently published within the sales brochure, were

wholly unreliable. He laid emphasis on the very precise nature of the figures provided by JLL. He described the waiver, as having been

expressed in an “enigmatic sentence”, in small print, wherein JLL had claimed, in terms, to have taken “every care” in the preparation

of all the particulars within the brochure, albeit in the context of advising prospective purchasers to “satisfy themselves as to the

correctness of the information given”. He held that JLL themselves had arranged to have the property surveyed and measured. This

was to accommodate potential purchasers. They arranged to have the results published in the brochure, but the floor area had been

negligently measured.

41. The judge found the auctioneers had failed to take appropriate steps to ensure that the information published was accurate. He

pointed out that no evidence had been adduced to the effect that it was the practice for prospective purchasers to measure the

floor areas of properties after entering into a contract, but before completion. I do not disagree with any of the trial judge’s

descriptions of the disclaimer clause. These were matters of fair inference and observation, I believe one could go further: the type

face of the disclaimer is better described as “miniscule” rather than small. The findings of fact were based on evidence before him.

42. The test to be applied to the disclaimer is an objective one. On an objective reading what is the effect of the disclaimer, seen in

the context of the factual findings? The judge rejected the suggestion that the words in the disclaimer were to cover every

contingency. His rejection was supported by credible evidence from Mr. Walsh and his witnesses. I do not accept that an objective

assessment of the disclaimer would put the reader of the brochure on a “clear duty of enquiry”, or that it would make it clear to any

person reading it that they must go and verify what was contained in the brochure.

43. Counsel for the appellant submitted that the terms of the disclaimer clause were clear and unambiguous. I disagree. To my mind,

the disclaimer itself contained a number of representations. The first was to the effect that this highly reputable firm had taken

“every care” in the preparation of the particulars. Second, it was represented that the measurements were believed to be correct,

although they were not warranted, and that intending purchasers should satisfy themselves as to those measurements. This clause

was ambiguous, in the sense that, while it conveyed an invitation, it also contained a representation that acceptance of the

invitation was hardly necessary.

44. It is, in my view, erroneous simply to suggest that the very existence of ‘any’ disclaimer clause is sufficient. I do not agree that

the statement of law cited from Caparo v. Dickman, quoted earlier at par. 7 supra, is to be read with the broad meaning that any

“disclaimer clause” will be sufficient to exonerate the proferror from responsibility. What is, in my view, determinative is, rather, an

objective reading of everything that is said in the waiver. It contained an explicit representation to the effect that ‘every care’ had

been taken by the firm. This is to be seen in the context of the findings of fact regarding the practice in Dublin among auctioneers,

valuers, and surveyors. There was no finding of fact that this was an inherently defective practice.

45. A further key question is the extent to which, upon an objective reading, the potential purchaser was put on notice? It is, of

course, true that Mr. Walsh was aware as to the existence of a waiver. But, as the judge found, he was not aware of its purported

scope. This was a reasonable inference based on the judge’s assessment of the witness.

46. To the eye of a potential purchaser then, the brochure, which came from a highly reputable firm, conveyed that the firm had

taken “every care” in carrying out the measurements of the property. What else was a purchaser to believe? The brochure elsewhere

conveys that what was given were accurate, precise measurements in square feet. By its reputation, and by the precise nature of

the measurements, the firm conveyed the message that the measurements were reliable. The situation is not altered by deploying the

term “while”, as a preface to the disclaimer.

47. For a court to be asked to carrying out a “weighting process” between one half and the other half of this disclaimer clause is

itself a rather artificial process. But it can be assisted by looking to the backdrop of the evidence as to how that disclaimer was

generally understood. The disclaimer clause contained a representation, intended to instil belief, regarding care. I do not accept that

an objective reading entails that the reader should treat the latter part of the waiver as being, in some way, more legally significant

than the former. I reject the proposition that the first part of the disclaimer is mere “flowery language”, as it was called, and that

only the latter part is legally significant. A disclaimer can only be given the legal significance imparted by all of the actual words it

contains, and the sense that all those words, taken together, would reasonably convey. If there is opacity, or ambiguity, it should, at

minimum, be strictly construed; if necessary, it should be interpreted contra proferentem. I choose the former.

48. There is, surely, something rather incongruous about a highly reputable firm of auctioneers and valuers seeking to make the case

that potential bidders should not, really, lend total credence to, or place complete faith in, their own representation, that they have

taken “every care” in preparing measurements. In fact, the evidence did not at all establish that the firm had taken “every care”.

The trial court was left in the situation where it might infer that JLL had either carried out the measurements incorrectly and

negligently, or, alternatively, had itself conveyed information which was communicated to JLL by another, accepted it at face value,

and put it in the brochure, without any intermediate checking. At risk of repetition, the appellant did not call any evidence on this

issue.

49. There was a duty upon JLL to take reasonable care to provide accurate information. If the firm owed such a duty, they were in

breach of that duty. To my mind, there is only one answer to the question, whether, objectively considered, the information on the

website created a relationship of proximity between the parties? It did. Equally, I would hold there is only one answer to the question

as to whether it is fair, just and reasonable to impose a duty of care. In my view, it is.

50. I do not think that the terms of the disclaimer, or the findings of fact, support the proposition that what is in question here is

some form of “first step”, where the reader is put on enquiry to take further steps. The reader was not told that the figures on the

brochure were “estimated” or “approximate”. One cannot avoid the conclusion that the disclaimer was intended to induce a state of

belief or trust, which two attributes are fundamental to all business transactions. The precisely conveyed actual words and figures, in

the context of their presentation, can only be viewed as an assertion of the appellant’s own corporate belief of the truth of what was

said in the brochure, rather than some ‘best guess’, or an ‘estimate’. The measurements contained were not “flowery statements”, or

guesses, or estimates, but rather conveyed the impression of being statements of hard, physical fact.

51. Counsel for the appellant has drawn our attention to the judgment of the Court of Appeal of England and Wales in McCullagh v.

Lane Fox & Partners [1996] P.N.L.R. 205. There, the Court of Appeal held that an estate agent, who carelessly mis-described the size

of a property, was not liable to a purchaser who bought the property relying on the mis-description, if the mis-description was part of

the particulars which contained standard disclaimers.

52. At first sight, the judgment would appear to favour the appellant. But, what is instructive, and I believe critical, are the form and

words of the disclaimer which that court held would put a purchaser on notice that he or she should carry out their own checks. The

disclaimer, specifically, negatived any assumption of responsibility for the statements contained in the brochure. It told the recipient,

in terms, that if he or she chose to rely upon it, then they must realise that the maker of the statement was not accepting

responsibility for the accuracy of what was said. The nature and character of the disclaimer was, unavoidably, part of the factual

circumstances, and part of the transaction. It clearly conveyed the issues where the valuers were, and were not, accepting

responsibility. It read, as set out at page 209 of the Report:

“1. These particulars do not constitute, nor constitute any part of, an offer or contract.

2. All statements contained in these particulars, as to this property are made without responsibility on the part of

Lane Fox or the vendors or lessors.

3. None of the statements contained in these particulars, as to this property are to be relied on as statements of

representations of fact.

4. Any intending purchasers must satisfy themselves, by inspection or otherwise as to the correctness of each of

the statements contained in these particulars.

5. The vendors do not make or give, and neither Lane Fox, nor any person in their employment has any authority

to make or give any representation or warranty what[so]ever in relation to this property.”

53. What could be clearer? The terms of that disclaimer were crystal-clear. Those auctioneers announced that they unconditionally

disclaimed any responsibility for the contents of the brochure. The disclaimer negatived, in terms, one of the essential elements for

the existence of a duty of care. The purchaser was told that, if he, or she, chose to rely upon the description contained in the

brochure, they must realise that the auctioneers were not accepting responsibility for the accuracy of the representations. There was

nothing opaque or ambiguous about what it said. It was not in small print. The contrast with the disclaimer in the present case is self-

evident.

54. To my mind, the trial judge carefully analysed each of the principles identified in Wildgust. He held the foreseeability and proximity

tests to be satisfied. He was satisfied there was communication to a member of an identifiable class who would rely upon it. Correctly

in my view, he held that the waiver carried with it a representation from a firm of the highest integrity that every care had been

taken in preparing the brochure. He concluded on cogent evidence that the information given was for a specific purpose, actually

made known to the purchaser, in circumstances where the firm should have known that the information would be relied on, and acted

upon. He held on the facts that the remainder of the disclaimer had no legal efficacy. I would uphold the judgment of the High Court,

and dismiss the appeal.