Misrep Flashcards
Mnemomic for structure?
I Poured Coffee Carelessly Risking Castration
Poole’s definition of a misrepresentation
An unambiguous false statement of fact made to the claimant which induces the claimant to enter into the contract with the statement maker
Dimmock v Hallet
A mere puff is not actionable
Carlill v Carbollic Smokeball
Adverts are generally mere puff, though this wasn’t
J Evans v A Merzario
A misrepresentation can also be a term of the contract though this is beyond the remit of the question
McInerny v Lloyds
Ambiguous so not misrepresentation
Avon v Swire
Substantially false
Horsfall v Thomas
Statement must be made to claimant so they are acting upon it
Commercial Banking v RH Brown
Statement addressed to a 3rd party can be an actionable misrep if the 3rd party is certainly going to pass it on (authority fo statement made to claimant)
Keates v Earl of Cadogan
No general duty of disclosure
Silence in general is not a statement of fact so is not actionable
Pankhania v Hackney
Statement of law is actionable
Gordon v Selico
Conduct is actionable despite silence
SPice Girls v Aprilla
Conduct is actionable despite silence
Bisset v Wilkinson
Statement of lay opinion is not actionable
Smith v Land Corp
Statement with greater knowledge is actionable
Esso v Marden
Statement of an expert is actionable
Wales v Wadham
Statement of future intent is not actionable and there is no duty to inform the other party of a change of intent
Edginton v Fitzmaurice
Future intention is actionable if there was never any real intention
Sykes v Taylor-Rose
In some circumstances there will be a duty to disclose information. E.g. buying a house
Dimmock v Hallet (2)
A half truth is actionable if it is misleading
With v O’Flannagan
A continuing representation is actionable
Hood v West End Motors
Silence is actionable in contracts of the utmost good faith where there is a duty to disclose a fact (Land/insurance)
Pan Atlantic v Pine Top
A statement is material if it would induce the reasonable man. This presumption can be rebutted
Smith v Chadwick
Where the reasonable man would be induced there is a presumption that the claimant is induced, unless this presumption is rebutted with evidence that thy were not subjectively induced
Museprime v Adhill
Where no inducement presumed, this can be rebutted by evidence showing that the claimant was induced
Redgrave v Hurd
- No general duty of investigation
2. No inducement where the claimant knows the statement to be untrue
Attwood v Small
No inducement if you rely on your own investigations
Edginton v Fitzmaurice (2)
If misrepresentation is a factor at all then the statement is actionable
JEB Fastners v Mark Bloom
The misrep must have been A factor, does not have to be the only factor
S pearson v Dublin Corp
Investigation irrelevant in fraudulent misrepresentations
Derry v Peek
A fraudulent misrepresentation is made;
- Knowing the statement is untrue
- Without belief in the truth
- Reckless to the truth
What remedies are available for fraudulent misrepresentation?
- Damages
- Indemnity
- Rescission
Standard chartered banking v Pakistan National Shipping
Contributory negligence not available under fraudulent misrepresentation
Doyle v OLby
Damages can be claimed for all loss flowing from the transaction, provided not too remote
East v Maurer
Loss of profits can be claimed, compared to hypothetical ideal
Chappel v Downs c/f Acquitane v Laporte
- If any profit made lost profit cannot be claimed
2. If you can prove you would have made a substantially greater profit this is claimable
Thomas Witter v TBP
Fraudulent misrep if you are reckless to the truth - flagrant disregard for the truth
New SMith Court v Scrimgeour Vickers
Damages reduced by benefit acrrued to the claimant
Erlanger v New Sombrero
Court will do what is practically just - Relevant for rescission
Royscott v Rodgerson
Fiction of fraud. Negligent misrepresentation treated the same as fraudulent misrepresentation
Negligent misrepresentation
S2(1) MA 1967 - False statement of fact which the defendant believes but is unreasonable to believe - Howard Marine v Ogden
What remedies are available for misrepresentation?
All of them; Rescission, damages, damages in lieu of rescission
Damages for negligent misrepresentation
Royscott v Rodgerson - treated the same as fraudulent misrep other than that only damages flowing from particular misstatement are claimable
Poole (obiter)
Unlikely to get loss of profits in negligent misrepresentation
Damages in lieu of rescission under negligent misrepresentation
Zanzibar v British Aerospace - If there are bars to rescission then damages in lieu of rescission are not available (current state of law)
Thomas v TBP - If rescission ever available then damages in lieu of rescission can be claimed
Contributory negligence in negligent misrepresentation
Gran Gelato - Yes can claim contrib neg if concurrent claim in tort (Vesta v Butcher)
Royscott v Rodgerson - No cannot claim contrib neg. (Grey area)
Innocent misrepresentation
S2(1) MA 1967Where a false statement of fact is made, but it is genuinely believed, and it is reasonable to believe it (objective test)
Remedies under innocent misrep
Rescission, damages in lieu of rescission, indemnity (most relevant here)
Whittington v Seale - Hayne
Business tax indemnified for turkey farm
Negligent misstatement
Where a 3rd party makes a misrepresentation
Hedley Byrne v Heller
Test for negligent misstatement;
- Foreseeable reliance
- Proximity
- Fair just and reasonable
What remedies are available for negligent misstatement?
Only damages which must be foreseeable (Wagonmound) (tortious measure)
What are the bars to recission?
Third party rights (Phillips v Brooks)
Affirmation (Long v Lloyd)
Impossibility (Clarke v Dickinson)
Lapse of time (Leaf v International Galleries)
UCTA in relation to exemption clauses
S3 - Can only exclude liability for a misrepresentation as far as is reasonable (S11)
S11 - UCTA 1977 - Reasonableness test
- Fair and reasonable on circumstances
- At time contract entered into
- BoP is on party seeking to enforce term
