The Gazette 1994

GAZETTE

AUGUST/SEPTEMBER 199*.

incidental to or consequential upon

their express objects. If acquiring prem-

ises suitable for their statutory pur-

poses entailed undertaking to act as

custodians of chattels contained therein

this could reasonably be regarded as

falling within their incidental or conse-

quential powers.

Reported at [1994] 1 ILRM 161

Sean McAnarney and Deirdre

McAnarney v. John Hanrahan and T.E.

Potterton Ltd; High Court (Costello J)

16 July 1993

Negligence - Negligent misstatement -

Representations made by auctioneer acting

on behalf of vendor to prospective purchas-

ers - Whether auctioneer owed duty of care

to purchasers - Price at which freehold re-

version pertaining to leasehold licensed

premises could be purchased - Assessment

of damages in cases of negligent misstate-

ment - Mental distress caused by

misrepresentation

Facts The defendants were auction-

eers who had been engaged to sell

licensed premises which were held un-

der a lease for 31 years which

commenced on 13 November 1958. The

plaintiffs arrived late for the auction

and were told by the first named defen-

dant that a bid of £54,000 had been

made but the property had then been

withdrawn. He informed them that

there had been negotiations with the

landlords and that the freehold interest

could be purchased for £3,000 or less. In

fact no bid of £54,000 had been made

and no negotiations with the landlords

concerning the purchase of the freehold

had taken place. On the basis of these

representations the plaintiffs eventu-

ally agreed in December 1984 to

purchase the premises for £45,000.

When the plaintiffs decided to sell the

premises in 1986 they were advised that

they should purchase the freehold.

However, the landlords demanded

£40,000. The plaintiffs could not raise

this amount and initiated proceedings

against the defendants for negligence.

The plaintiffs remained in possession of

the premises after the expiration of the

lease without paying rent. In 1991 they

purchased the freehold for £30,000 and

later that year sold the premises for

£80,000.

Held by Costello J in finding the defen-

dants negligent and awarding damages

to the plaintiffs: (1) The first named de-

fendant took it upon himself to give an

opinion regarding the purchase of the

freehold. He should have known that

the plaintiffs would place reliance on

what he told them, particularly as he

had expressly stated that negotiations

had already taken place with the land-

lords. This gave rise to a special rela-

tionship between the plaintiffs and the

first named defendant which imposed

a duty of care on the latter in respect of

the giving of the information. By failing

to find out what price the landlords

would require for their interest the first

named defendant breached this duty of

care.

Hedley Byrne & Co. Ltd v. Heller &

Partners Ltd

[1964] AC 465 applied and

Bank of Ireland v. Smith

[1966] IR 646

distinguished. (2) The method for as-

sessing damages in cases of negligent

misstatement is analogous to that used

in respect of the tort of deceit. The dam-

ages are calculated so as to put the

plaintiff in the position he would have

been in if the representation had not

been made to him. Thus where a plain-

tiff has been induced to enter into a

contract for the purchase of land by a

negligent misstatement, the normal

measure of damages is the price paid for

the land less its actual value at the time

of purchase. (3) Accordingly the plain-

tiffs were not entitled to damages of

£27,000 in respect of the supposed loss

of bargain caused by the difference be-

tween what had been represented as the

price of the freehold interest and what

it had actually cost to purchase. Instead

the plaintiffs were entitled to £5,000 as

the premises were worth approxi-

mately £40,000 at the time when they

paid £45,000 for them. (4) The cost of

refurbishing the premises was not re-

coverable by way of special damages

because it would have been incurrred

any way and was not a consequence of

the defendants' negligence. (5) In suit-

able cases damages for negligent

misstatement could take into account

mental distress caused to the plaintiff.

However, any distress caused by the

defendants here could not be measured

in any meaningful way and the justice

of the case did not require that the dam-

ages should be increased.

Reported at [1994] 1 ILRM 210

C.R. v. An Bord Uchtála: High Court

(Morris J) 28 June 1993

Family Law - Adoption - Judicial Review

- Application for particulars to make trace-

able the connection between entry in

Adopted Children's Register and corre-

sponding entry in Registry of Births -

Refusal by board to furnish information -

Particulars not to be given except by order

of court or board - Whether board has obli-

gation to determine such application -

Whether blanket policy of refusal - Whether

board considered relevant information to

enable it exercise its discretion - Whether

function of board may be delegated to adop-

tion society - Adoption Act 1952, section

22 - Adoption Act 1976, section 8

Facts The applicant was adopted some

years prior to his signing of the

Adopted Children's Register which

had the effect of regularising his adop-

tion. He wished to find out more about

his natural parents and applied to the

respondents for information to make

traceable the connection between the

.entry relating to him in the Adopted

Children's Register and the corre-

sponding entry in the Registry of Births

pursuant to section 22 of the Adoption

Act 1952. He sought to obtain his origi-

nal birth certificate. The board refused

his application for reasons of confiden-

tiality and stated that it would not

depart from its practice of not provid-

ing for any right of access to birth

records by adopted persons. The board

made no enquiry as to the merits of the

application but advised the applicant to

contact the adoption society. The appli-

cant sought an order of

certiorari

quashing the purported decision by the

respondents and an order of

mandamus

requiring them to carry out their obliga-

tion to determine the issue of the

applicant's entitlement to the particu-

lars sought. It was submitted that upon

an application being made pursuant to

section 22 of the Adoption Act 1952 for

information contained in the index, the

board has an obligation to determine

that application in a proper manner and

not upon the basis of a blanket policy of

refusal, nor could they delegate to an

adoption society the function vested in

them.

Held by Morris J in granting the reliefs

sought: (1) As no effort had been made

by the respondents to decide the appli-

cation on its individual merits such

determination, as there was, fell short of

the obligation imposed by section 22 of

the Adoption Act 1952. (2) The matter

should be sent back to the adoption

board to determine the applicant's ap-

plication. The result of this deter-

mination was a matter exclusively for

the board. (3) In order for the respon-

dents to be satisfied that in any parti-

cular case it is proper to release such

information it would be necessary to

screen any applicant and the parent he

is attempting to trace. (4) The board,

while retaining full seisin of the matter,

ought to seek the assistance and advice

of the adoption society in the matter

prior to making a decision. (5) The de-

cision to furnish or withhold any in-

formation must be that of the board.

Reported at [1994] 1 ILRM 217