Walsh v Jones Lang Lasalle
Walsh v Jones Lang Lasalle [2017] IESC 38 (judgment) an update and affirmation of the great negligent misstatement case of Hedley Byrne v Heller given by the Supreme Court of Ireland (so of persuasive force but not binding precedent)
JLL sent Walsh a brochure for a property which overstated its floorspace by 20%. The brochure carried a disclaimer stating (in small print):
- “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.”
Walsh, a purchaser, sued, claiming:
- JLL was under a duty of care to Mr. Walsh in preparing and making available to him information and particulars in relation to the Property, in particular, to ensure that the information and particulars so provided would be accurate and that all reasonable skill and care would be used by JLL in furnishing such information and particulars. It is asserted that JLL knew or ought to have known that Mr. Walsh would rely on the contents of the brochure furnished to him by JLL and that JLL owed to Mr. Walsh a duty of care in respect of the brochure. That JLL expressly represented to Mr. Walsh that it had taken every care in the preparation of the particulars in the brochure and that by reason thereof JLL had assumed responsibility to Mr. Walsh for the contents of the brochure and was under a duty of care to ensure its accuracy and to ensure that every care had been taken in its preparation is pleaded in the statement of claim.
High Court judgment
At first instance, the High Court of Ireland found for the plaintiff.
- “The information within the brochure was published by [JLL] for the express purpose of influencing a limited number of identifiable persons. The publication of the ‘disclaimer’ was immaterial to that fact. [Mr. Walsh] was a person to whom the brochure was expressly directed and he was influenced by the information published within the brochure. I am satisfied on the evidence that he relied upon the measurements within the brochure when calculating his precise bid or ‘tender’ for the purchase of the property.”
- “If [JLL] wished to reserve to itself the right (a) to publish within its sales brochure, precise measurements which were in fact grossly inaccurate and (b) to relieve itself of liability to the category of persons to whom the brochure and its contents were directed, then there was an obligation upon [JLL] to draw to the attention of [Mr. Walsh] and other prospective purchasers the fact that the seemingly precise measurements published were likely to be wholly unreliable and should not be relied upon in any circumstances.”
The trial judge concluded that JLL failed to discharge that obligation by including within the brochure “an enigmatic sentence in small print”.
- “It follows that loss and damage to [Mr. Walsh] in this case was reasonably foreseeable by [JLL]. Having found, as I have that (a) the relationship between [Mr. Walsh] and [JLL] was sufficiently proximate to give rise to a ‘special relationship’ of the kind identified in Wildgust . . . and (b) that the loss allegedly sustained by [Mr. Walsh] was reasonably foreseeable in the circumstances and (c) that the imposition upon [JLL] of such a duty is, in the circumstances not unfair, unjust or unreasonable, it follows that I am satisfied on the facts of this case that [JLL] owed a duty of care to [Mr. Walsh] to ensure that the calculation of the floor area of the property in (sic) which [JLL] published in its sales brochure was accurate.”
Supreme Court of Ireland
Happily, a decade later (seriously) the Irish Supreme Court had a rather better day at the office than did Quirke J, when he first heard the case. Ten years: that’s quite the civil litigation voyage to resolve a seemingly straightforward question.
Points to note:
- A disclaimer may be enough, depending on the circumstances, to rebut any duty of care;
- Liability for negligent misstatement requires the speaker to assume some responsibility, at least by implication;
- A disclaimer is not an exemption clause, but is evidence relevant to the existence of such a duty or care (i.e. that the speaker had not assumed the risk);
A disclaimer of a duty of care can be evidence that no duty of care is assumed