8 Misrepresentation and duress

Question 1

Fletcher v Krell 1873

Answer 1

Misrepresentation
There is no general duty to disclose relevant facts, and parties are free to conceal facts as long as they do not lie
Refused to find a claim for misrepresentation as this would turn contracts of employment into utmost good faith - something that it was not prepared to do

Question 2

Davies v London and Provincial 1878

Answer 2

L&P had a duty to disclose
If a statement has been made which is true at the time, but which during the course of negotiations becomes untrue, then the person who knows that it has become untrue is under a duty to disclose to the other the change of circumstances

Question 3

Bisset v Wilkinson 1927

Answer 3

Illustrates how much cases in representation are influenced by the views of individual judges as to which facts are more salient
CoA held it was a statement of fact, but Supreme Court and Privy Council held it was merely an opinion

Question 4

Esso Petroleum v Mardon 1976

Answer 4

involved a statement that seemed to be a statement of opinion at face value
Involved information asymmetry
Mardon was relying on Esso’s superior knowledge

Question 5

Foster v Action Aviation

Answer 5

Negligent misrepresentation
Failure to report to the authorities
Honest belief is not a defence if the statement in question is one of fact
Difficult to recover against third parties

Question 6

Cundy v Lindsay

Answer 6

Hankies

Distinction between identity and attributes (when the identity mattered and when it did not)

Question 7

Shogun Finance Ltd v Hudson 2004

Answer 7

HoL distinction between face-to-face transactions and documentary ones
Crook sold car he bought with stolen identity
Extremely fine distinction
Criticised for being difficult to apply and not adding much clarity

Question 8

Pao On v Lau Yiu Long

Answer 8

Impact of the pressure on the person who was subject to it
Privy Council (Lord Scarman) set up 4 factors that were relevant to assessing whether a person’s consent was vitiated by duress:
(1) Did the person who claims to have been coerced protest at the time?
(2) Did he have an alternative course of action open to him?
(3) Did he have access to independent advice?
(4) Did he take steps to avoid the contract after it was formed?
Only 3/4 factors satisfied

Question 9

R v Attorney - General for England and Wales

Answer 9

Soldier case 
Illegitimacy 
Lord Hoffman - two ways illegitimacy can be assessed:
(1) nature of the pressure
(2) nature of the demand 
No illegitimate pressure

Question 10

Barton v Armstrong 1976

Answer 10

Inducing the contract
Personal violence
Lord Cross in Privy Council said it needs to be a factor, but need not be the primary factor

Question 11

Allcard v Skinner 1887

Answer 11

Presumed undue influence
Sister asked her to dispose of her things before entering the convent
CoA said presumed undue influence due to the nature and relationship
Barred suit due to 6 year time lapse

Question 12

RBS Plc v Etridge (No 2)

Answer 12

The Parties’ relationship
HoL expressed scepticism about classification of relationships
The presumption will only apply if the transaction is not readily applicable by ordinary motives
Changed the way transactions should be treated between husband and wife