The Gazette 1994

AUGUST/SEPTEMBER 199*.

GAZETTE

enable it exercise its discretion - Whether function of board may be delegated to adop- tion society - Adoption Act 1952, section 22 - Adoption Act 1976, section 8 Facts The applicant was adopted some years prior to his signing of the Adopted Children's Register which had the effect of regularising his adop- tion. He wished to find out more about his natural parents and applied to the respondents for information to make traceable the connection between the .entry relating to him in the Adopted Children's Register and the corre- sponding entry in the Registry of Births pursuant to section 22 of the Adoption Act 1952. He sought to obtain his origi- nal birth certificate. The board refused his application for reasons of confiden- tiality and stated that it would not depart from its practice of not provid- ing for any right of access to birth records by adopted persons. The board made no enquiry as to the merits of the application but advised the applicant to contact the adoption society. The appli- cant sought an order of certiorari quashing the purported decision by the respondents and an order of mandamus requiring them to carry out their obliga- tion to determine the issue of the applicant's entitlement to the particu- lars sought. It was submitted that upon an application being made pursuant to section 22 of the Adoption Act 1952 for information contained in the index, the board has an obligation to determine that application in a proper manner and not upon the basis of a blanket policy of refusal, nor could they delegate to an adoption society the function vested in them. Held by Morris J in granting the reliefs sought: (1) As no effort had been made by the respondents to decide the appli- cation on its individual merits such determination, as there was, fell short of the obligation imposed by section 22 of the Adoption Act 1952. (2) The matter should be sent back to the adoption board to determine the applicant's ap- plication. The result of this deter- mination was a matter exclusively for the board. (3) In order for the respon- dents to be satisfied that in any parti- cular case it is proper to release such information it would be necessary to screen any applicant and the parent he is attempting to trace. (4) The board, while retaining full seisin of the matter, ought to seek the assistance and advice of the adoption society in the matter prior to making a decision. (5) The de- cision to furnish or withhold any in- formation must be that of the board. Reported at [1994] 1 ILRM 217

incidental to or consequential upon their express objects. If acquiring prem- ises suitable for their statutory pur- poses entailed undertaking to act as custodians of chattels contained therein this could reasonably be regarded as falling within their incidental or conse- quential powers. Reported at [1994] 1 ILRM 161 Sean McAnarney and Deirdre McAnarney v. John Hanrahan and T.E. Potterton Ltd; High Court (Costello J) 16 July 1993 Negligence - Negligent misstatement - Representations made by auctioneer acting on behalf of vendor to prospective purchas- ers - Whether auctioneer owed duty of care to purchasers - Price at which freehold re- version pertaining to leasehold licensed premises could be purchased - Assessment of damages in cases of negligent misstate- ment - Mental distress caused by misrepresentation Facts The defendants were auction- eers who had been engaged to sell licensed premises which were held un- der a lease for 31 years which commenced on 13 November 1958. The plaintiffs arrived late for the auction and were told by the first named defen- dant that a bid of £54,000 had been made but the property had then been withdrawn. He informed them that there had been negotiations with the landlords and that the freehold interest could be purchased for £3,000 or less. In fact no bid of £54,000 had been made and no negotiations with the landlords concerning the purchase of the freehold had taken place. On the basis of these representations the plaintiffs eventu- ally agreed in December 1984 to purchase the premises for £45,000. When the plaintiffs decided to sell the premises in 1986 they were advised that they should purchase the freehold. However, the landlords demanded £40,000. The plaintiffs could not raise this amount and initiated proceedings against the defendants for negligence. The plaintiffs remained in possession of the premises after the expiration of the lease without paying rent. In 1991 they purchased the freehold for £30,000 and later that year sold the premises for £80,000. Held by Costello J in finding the defen- dants negligent and awarding damages to the plaintiffs: (1) The first named de- fendant took it upon himself to give an opinion regarding the purchase of the freehold. He should have known that the plaintiffs would place reliance on what he told them, particularly as he

had expressly stated that negotiations had already taken place with the land- lords. This gave rise to a special rela- tionship between the plaintiffs and the first named defendant which imposed a duty of care on the latter in respect of the giving of the information. By failing to find out what price the landlords would require for their interest the first named defendant breached this duty of care. Hedley Byrne & Co. Ltd v. Heller & Partners Ltd [1964] AC 465 applied and Bank of Ireland v. Smith [1966] IR 646 distinguished. (2) The method for as- sessing damages in cases of negligent misstatement is analogous to that used in respect of the tort of deceit. The dam- ages are calculated so as to put the plaintiff in the position he would have been in if the representation had not been made to him. Thus where a plain- tiff has been induced to enter into a contract for the purchase of land by a negligent misstatement, the normal measure of damages is the price paid for the land less its actual value at the time of purchase. (3) Accordingly the plain- tiffs were not entitled to damages of £27,000 in respect of the supposed loss of bargain caused by the difference be- tween what had been represented as the price of the freehold interest and what it had actually cost to purchase. Instead the plaintiffs were entitled to £5,000 as the premises were worth approxi- mately £40,000 at the time when they paid £45,000 for them. (4) The cost of refurbishing the premises was not re- coverable by way of special damages because it would have been incurrred any way and was not a consequence of the defendants' negligence. (5) In suit- able cases damages for negligent misstatement could take into account mental distress caused to the plaintiff. However, any distress caused by the defendants here could not be measured in any meaningful way and the justice of the case did not require that the dam- ages should be increased.

Reported at [1994] 1 ILRM 210

C.R. v. An Bord Uchtála: High Court (Morris J) 28 June 1993

Family Law - Adoption - Judicial Review - Application for particulars to make trace- able the connection between entry in Adopted Children's Register and corre- sponding entry in Registry of Births - Refusal by board to furnish information - Particulars not to be given except by order of court or board - Whether board has obli- gation to determine such application - Whether blanket policy of refusal - Whether board considered relevant information to 2