Dear Andrew, all

The Achilleas was not referred to.

Regarding SAAMCO, the Court said the following:

"25. As regards the question of legal causation, remoteness and scope
of duty, the law is well established in Glencar Explorations v. Mayo
County Council
[2002] 1 I.R. 84, at page 139. As O’Donnell J., speaking for a
unanimous Supreme Court, pointed out in Whelan v. AIB [2014] IESC 3:

“The Glencar test does not mandate or permit a consideration of each
individual case and whether the imposition of a duty of care, and
therefore liability,
meets some undefined concept of fairness in the particular case. If
that were so, then the law would be no more than the application of
individual discretion
in different facts or circumstances which might well be decided
differently from court to court. In such circumstances, the law of
negligence would be
little more than the wilderness of single instances criticised by Tennyson.”
26. There is no basis, therefore, for seeking to rely on a “fact
specific” application of Glencar principles to this case. While the
appellant referred,
in written submissions, to the decision of the House of Lords in
Banque Bruxelles v. Eagle Star [1997] AC 191 (SAAMCO), this point was
not addressed in
oral submissions, and it is not, therefore, necessary to consider the
matter further. In any case, the issue of the scope of liability has
been definitively
determined by the Supreme Court, not only in Glencar, and Whelan, but
in more recent authority also. Even were a different principle to
apply, the liability
of the appellants in this case was clearly within the scope of that
firm’s duty."

As I read paragraph 26, the Court is holding that (i) SAAMCO was not
pressed on the Court for whatever reason; (ii) the Court did not think
application of the SAAMCO principle would have lead to a different
result (which seems far from beyond argument to me, I must say); and
(iii) the Court did not have to decide and therefore did not consider
if SAAMCO represents the law in this jurisdiction.

There are cases at High Court level in which SAAMCO has been followed,
of which the most important is the influential judgment of Clarke J in
ACC Bank v Johnston [2011] IEHC 376, at paragraph 7.12 and following.

http://www.bailii.org/ie/cases/IEHC/2011/H376.html

I have to say that my understanding of the Supreme Court's judgment in
Glencarr (as it relates to liability in negligence) and of the
comments of O'Donnell J concerning Glencarr in Whelan (referred to by
the Court of Appeal at paragraph 25, quoted above) was and is that
they concerned the test for the imposition of a duty of care. I do not
see either case as directly concerned with legal causation. Rather,
those judgments addressed the related but distinct question, should a
duty of care be imposed by the law in the particular circumstances.
The gloss which Glencarr introduced was to require the Court not only
to ask if the relationship of the parties was proximate and the damage
flowing from breach of duty foreseeable but also and as a check on
those findings to consider if it was fair just and reasonable to
impose a duty of care in the circumstances.

I do not think the Court of Appeal's judgment is an authority on
whether SAAMCO is good law in Ireland and I think that it is on the
current state of the caselaw, which is all at High Court level
however.

Kind regards

Ger

On 6/8/16, Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk> wrote:
> Did anyone argue The Achilleas (cf John Grimes v Gubbins [2013] EWCA
> Civ 37; [2013] P.N.L.R. 17) or SAAMCO?
>
> Andrew
>
>
>
> On 07/06/2016 21:30, Gerard Sadlier wrote:
>> Dear all,
>>
>> Some of you may be interested in the decision of the Court of Appeal
>> in Ireland in Rosbeg Partners Limited -v- L. K. Shields (A Firm)
>> [2016] IECA 161, which was published today.
>>
>> The case involved an appeal by the Defendant firm of solicitors
>> against a judgment of the High Court (Peart J.) in which he held the
>> defendants/appellants liable for professional negligence.
>>
>> In brief, the Defendant had acted for the Plaintiff, when the
>> Plaintiff purchased certain property in 1994/1995 (the "Property").
>> The Defendant undertook to attend to the registration of part of the
>> Property (the "Registrable Lot") in the Land Registry, following its
>> acquisition (which would be standard conveyancing practice) and the
>> vendor's solicitors gave an undertaking (which is standard in Irish
>> conveyancing practice), to assist with queries) regarding to the
>> Registrable Lot which the Land Registry might raise.
>>
>> The Defendant had not registered the Registrable Lot by 2007 and
>> admitted that it was negligent because it had failed to do so.
>> Apparently the Defendant had made efforts to do so and the Land
>> Registry raised boundary queries (which would not be unusual) which
>> were not addressed. The upshot was that the Registrable Lot was not
>> registered. (I do not find the Court of Appeal judgment as clear on
>> the sequence of events as it might be, no doubt because nothing turned
>> on the precise sequence of events in the Court of Appeal, in light of
>> the Defendant's concession. The High Court judgment is clearer.)
>>
>> It is important to be clear that the Plaintiff had good title to the
>> Registrable Lot at all times. However, to have a markitable title, the
>> Plaintiff needed to have the Registrable Lot registered in the Land
>> Registry.
>>
>> The Plaintiff was unaware that part of its Property had not been
>> registered in 2007, when it was offered €10,000,000 for its Property
>> at the height of Dublin's property bubble by a neighbouring land
>> owner.
>> That sale fell through and the property market crashed soon
>> afterwards, so the Property was not sold.
>>
>> Both the High Court and Court of Appeal regarded the case as very much
>> turning on its own facts.
>>
>> In findings upheld by the Court of Appeal, the High Court held that:
>>
>> 1. The Plaintiff had decided to accept the Defendant's offer of
>> €10,000,000 for the Property;
>>
>> 2. But for the title issue regarding the Property because the
>> Registrable Lot had not been registered, the prospective buyer would
>> have bought the Property for that price in October 2007;
>>
>> 3. It didn't matter, given the Plaintiff's decision to accept the
>> Defendant's offer for the Property that no formal binding contract had
>> been entered into; (This seems right)
>>
>> 4. The Plaintiff was not to be faulted because it had not explored the
>> possibility of entering into a conditional contract for the sale of
>> the Property to the buyer; (Conditional contracts are quite common in
>> Irish conveyancing practice - the buyer agrees to purchase conditional
>> on the seller obtaining good and marketable title by a given date by
>> say having property registered in the Land Registry)
>>
>> 5. On the facts the Plaintiff had not failed to mitigate its loss; and
>>
>> 6. The Plaintiff was entitled to damages for loss of bargain, the
>> difference between the €10,000,000 which it would have obtained if it
>> had sold the Property to the buyer in 2007 and what the Property was
>> worth at the date of judgment.
>>
>> Comment:
>>
>> The Court of Appeal concluded that this case involved the application
>> of well established principles of law to the facts.
>>
>> I have to say that I think it surprising that:
>>
>> 1. Both the High Court and the Court of Appeal appear not to have
>> considered whether, in determining what the prospective purchaser
>> would have done if there had been no issue about the Registrable Lot,
>> they should apply the 'balance of probabilities but for' test (as they
>> seem to have) or should treat the case as involving the loss of a
>> chance by the buyer;
>>
>> 2. The Statute of Limitations did not figure prominantly either in the
>> High Court or Court of Appeal. (In Irish law, one has 6 years from
>> the date on which the cause of action accrues, whether one knows of
>> the wrong or not in a case of this sort, subject to conduct which
>> delays the running of time, including fraudulant concealment and
>> mistake. The Court of Appeal did not consider this point. The High
>> Court noted that the Statute was not relied upon with any vigor and
>> concluded that it was inapplicable because the Defendant ought to have
>> kept the Plaintiff informed of the difficulties in the Land Registry
>> and had not. However, the last engagement with the Land Registry
>> referred to in the High Court appears to have been in or around 1998,
>> so even if that is right, that negligence would have been barred by
>> 2004/2005, unless the Plaintiff was under a continuing duty to ensure
>> registration, which the High Court does not hold that it was);
>>
>> 3. The Plaintiff's failure to offer to enter into a conditional
>> contract was not held against it, either as a matter of contributory
>> negligence or an issue going to mitigation. (As against that, the
>> prospective' purchaser's reaction given his rather unusual approach to
>> business of this kind could hardly be guaranteed and it might be said
>> that the Defendant's job was to ensure that the Plaintiff didn't need
>> to rely on such contracts - though as noted they are not unusual by
>> any means in Irish conveyancing practice); and
>>
>> 4. The very unusual collocation of the circumstances that (i) the
>> property bubble was at its height; (ii) the prospective purchaser was
>> interested in a quick deal or no deal at all and (iii) conditional
>> contracts were not considered for whatever reason was not regarded as
>> making the damage too remote to permit recovery.
>>
>> See below a link to the judgment of the Court of Appeal:
>>
>> http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/799e0708c46d2f1e80257fcb004c5360?OpenDocument
>>
>> And a link to the High Court Judgment:
>>
>> http://www.bailii.org/ie/cases/IEHC/2013/H494.html
>>
>> Comments welcome - apologies for the length of the email.
>>
>> Kind regards
>>
>> Ger
>
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