The High Court has declared that Brian, Maurice and Kenneth McDonagh’s claim against CBRE over a 2007 valuation of land at Kilpeddar, Co Wicklow, is barred by the Statute of Limitations and dismissed the proceedings.
Mr Justice Quinn ruled on 12 May 2023 that the cause of action had accrued by 1 October 2014 at the latest, when Ulster Bank appointed receivers over the property. The proceedings began on 12 February 2021, outside the six-year limitation period for the negligence claim. The judge also found no fraudulent concealment that would defer the start of that period.
The brothers bought the 33-hectare site in 2007 for a planned data centre. CBRE valued it at €56 million. They borrowed €21.5 million from Ulster Bank and invested a further €4.5 million. The plaintiffs alleged that CBRE’s valuation was negligent and in breach of contract. CBRE denied liability, including that it owed the brothers a duty of care; those issues were not determined in this application.
The dispute before the court concerned when loss occurred. The brothers argued that loss arose on later dates, including when the High Court entered judgment for the Bank in April 2020 and when the land was sold for €3 million in February 2021. They also argued that CBRE had fraudulently concealed their right of action through its handling of information about earlier proceedings between CBRE and the Bank.
The judge said negligence requires actual damage, not merely a possibility of loss, and that the precise amount need not yet be known. He concluded that the brothers had lost the benefit of their investment and the opportunity to use the property to repay the Bank by the time receivers were appointed. He also pointed to the 2013 compromise agreement, under which the brothers undertook to sell the property and apply proceeds to their debt, and to their 2014 attempt to sell it for €1.5 million. The agreement and proposed sale were among the material considered; the judge did not treat the later quantified shortfall as the date loss first arose.
The Bank had separately sued CBRE over the valuation and settled that claim in 2016 for €5 million plus €350,000 in costs, without an admission of liability. The Court of Appeal later held that the settlement did not affect the brothers’ legal liability for their loans. Justice Quinn found that the settlement and related proceedings did not conceal facts establishing the brothers’ right of action against CBRE.
The court therefore declared the claim against CBRE statute-barred under section 11 of the 1957 Act and dismissed the proceedings. The judgment resolved the limitation application; it did not determine whether CBRE was negligent or liable.