The High Court awarded John and Patricia Walsh €150,000 in damages against South Tipperary County Council after finding that an inaccurate council letter about a public right of way contributed to difficulties in selling their land. The court also awarded Courts Act interest from 1 February 2009.
Mr Justice Clarke delivered judgment on 9 December 2011. The council had accepted that a mistake was made. A letter issued in April 2005 told the solicitors for a predecessor in title that the road was “in charge of the Council”. The council’s digital records wrongly showed the entire lane as public. In fact, the public right of way extended only as far as farm buildings halfway along it; the remaining section crossed another owner’s land and carried a private right of way benefiting the Walshes’ property.
The Walshes bought the land in 2005 with the letter among the title documents. When they agreed to sell in 2008, the purchaser questioned the road’s status. The council initially repeated its assurance before a further inquiry uncovered the records error. The sale closed in January 2009 on less favourable terms.
The judge held that the letter was a confirmation of the road’s status, not the exercise of a statutory decision-making function. He found that local authorities should anticipate that such letters would be relied on in property transactions and retained with title documents. The Walshes were within the foreseeable class of future purchasers who might rely on the letter. The council therefore owed them a duty of care and was liable for negligent misstatement.
The court rejected the argument that the Walshes should have recognised the letter was wrong because the upper part of the lane was unmetalled or had not been resurfaced. Those circumstances would not necessarily alert an ordinary member of the public to an error in the council’s clear confirmation. The judge also noted that a further council inquiry during the sale initially produced the same incorrect assurance.
The Walshes claimed more than €300,000, including a €200,000 price reduction, the agreed €50,000 value of a site included in the final sale, €45,743.34 in additional interest and €7,290 in legal costs. The judge found that those types of loss were foreseeable, but held that the Walshes failed to mitigate their losses by not invoking or threatening arbitration under the sale contract’s error clause. He considered that a reasonable resolution through arbitration would have limited their losses to €150,000, including an allowance for a price reduction, interest and legal costs. He did not find a separate failure to mitigate in the Walshes’ rejection of an earlier €20,000 deposit proposal.