Cases - McCullagh v Lane Fox & Partners Ltd
Record details
- Name
- McCullagh v Lane Fox & Partners Ltd
- Date
- (1996)
- Citation
- 1 EGLR 35
- Legislation
- Keywords
- Estate agency
- Summary
-
The plaintiff saw an advertisement offering for sale a house fronting the River Thames with gardens of nearly 1 acre. During a visit to the property, the vendor's estate agent confirmed the area of the gardens and the plaintiff was provided with a copy of the sale particulars which described the house as being set in 0.92 acres. The particulars also contained disclaimers, including:
'... all statements contained in these particulars as to this property are made without responsibility on the part of Lane Fox ...'
Later in the visit the plaintiff informed the agent that if he bought the property he would demolish the house, keep the swimming pool, incorporate a tennis court and build a 'dream home'. After buying the property, the plaintiff discovered that the gardens were in fact only 0.48 acres and not large enough to accommodate a tennis court.
The Court of Appeal held that there had been no breach of duty under the rule in Hedley Byrne. Two of the judges thought there had been no duty of care because, at the time the agent made the oral statement confirming the size, he would have been entitled to take the view that his statement would be independently checked (by the plaintiff's solicitor or surveyor) and would not be relied upon. The judge at first instance had held that the duty of care arose as soon as the agent discovered that the plaintiff intended to demolish the house and rush through the transaction in 2 days, because at this point the agent would know that there would be no independent survey. The majority in the Court of Appeal disagreed, stating that one cannot correct a misrepresentation when one is not aware it is false. The third judge, on the other hand, was of the opinion that, as soon as the agent knew that the plaintiff would not be relying on a survey, it was his duty to take reasonable steps to see that the plaintiff was not caused loss.
In any case, all 3 judges agreed that, whether there was a duty of care or not, the disclaimer operated to exclude liability. Its effect was to deny the assumption of responsibility necessary for liability under the rule in Hedley Byrne in respect of the written particulars and the oral statement. The disclaimer was also held to be fair and reasonable.