The Court of Appeal has dismissed an appeal by Brian, Maurice and Kenneth McDonagh over a 2007 valuation of lands at Kilpeddar, Co Wicklow, affirming the High Court’s decision that their claim against CBRE was brought outside the six-year limitation period.
The brothers claimed damages for negligence and breach of duty over CBRE’s valuation of a 33-hectare site at €56 million. They had planned to develop a data centre there. The appeal concerned when the alleged damage occurred for limitation purposes and whether CBRE had fraudulently concealed their right of action.
The court, in a judgment delivered by Mr Justice Charles Meenan on 18 January 2024, said the brothers’ claim was issued on 12 February 2021. It identified several dates before 13 February 2015 on which damage had occurred: when the brothers borrowed €21.5 million and invested about €4.5 million in 2007; when they entered a compromise agreement with Ulster Bank in March 2013; and when receivers were appointed over the lands in October 2014.
The brothers argued that their loss did not occur until the lands were sold by the bank for €3 million in February 2021, when the shortfall became clear. The Court of Appeal said damage sufficient to start the limitation period need not await calculation of the full amount of loss. It said the terms of the compromise agreement showed the brothers had lost their investment, and the receivers’ appointment deprived them of control of the lands and the prospect of developing them.
The agreement required a €5 million payment and the sale of the lands by 31 July 2014. The brothers did not comply. In separate proceedings, a High Court judge had found that a purported 2014 sale to Granja Limited was a sham; the Court of Appeal judgment records that the brothers acknowledged this during the hearing below.
The court also rejected the argument that CBRE concealed the brothers’ potential claim by failing to disclose the bank’s earlier proceedings against CBRE, or by taking different positions in those proceedings about who had engaged it. The judgment said the brothers knew CBRE had provided the valuation and that they had paid a fee for it.
The appeal was dismissed and the High Court order affirmed. The Court of Appeal stated a provisional view that costs should be awarded against the appellants, who were given 14 days to file written submissions opposing that proposed order. The judgment does not state a final costs order.