When Is A Disclaimer Not A Disclaimer?

In a recent decision¹ on an estate agent's liability to a purchaser for errors in a sales brochure, the Supreme Court clarified the scope and validity of disclaimers of liability addressed by professional service firms to third parties. In the lead decision, O'Donnell J expressed the view that giving effect to the disclaimer best reflected the proper allocation of risk in the transaction, and that this approach would ultimately provide clarity and efficiency for market participants.

Background

In 2000, the purchaser, Mr Walsh, an experienced property investor, viewed a property in Dublin which was being marketed by Jones Lang Lasalle ("JLL") on behalf of its client. JLL produced a sales brochure which contained details in relation to location, description, zoning, as well as precise calculations of floor area. The brochure also contained a disclaimer in small print to the effect that "Whilst every care has been taken in the preparation of these particulars,