The claimants had been persuaded to take up leases on a service area constructed by the defendants. They said that the publicity materials had wildly exaggerated the actual number of visitors, and sought damages for fraudulent misrepresentation.
Held: The claim in fraudulent misrepresentation failed. Lewison J discussed why the entire agreement clause satisfied the test of reasonableness within section 11 of the 1977 Act: ‘(i) The aspiration of certainty is a reasonable one for the parties to adopt. In most cases it will have the effect of avoiding a twelve day trial such as this one.
(ii) There was no substantial imbalance of bargaining power between the parties. Each of the tenants was a commercial and substantial concern . .
(iii) Each of the tenants was advised by solicitors . .
(iv) The term itself was open to negotiati . .
(v) Perhaps most importantly, the clause expressly permitted reliance on any reply given by the Henry Boot’s solicitors to the tenant’s solicitors. If, therefore, something of importance had been stated in the course of negotiations upon which the intending tenant wished to rely, its solicitors had only to ask Henry Boot’s solicitors for an answer to a question. That would have revealed whether Henry Boot was prepared to formalise the statement so that the tenant could rely on it or whether the tenant would have to undertake its own due diligence.’
Judges:
Lewison J
Citations:
[2010] EWHC 358 (Ch)
Links:
Statutes:
Unfair Contract Terms Act 1977 11
Jurisdiction:
England and Wales
Citing:
Cited – Onassis and Calogeropoulos v Vergottis HL 1968
Lord Pearce (dissenting) discussed the assessment of a witness’ oral evidence: ‘Credibility involves wider problems than mere demeanour which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. . .
Cited – Henderson v Volk 1982
(Court of Appeal of Ontario) Cory JA said: ‘It is different when a party seeks to establish a right-of-way for pedestrians over a sidewalk. In those circumstances the user sought to be established may not even be known to the owner of the servient . .
Lists of cited by and citing cases may be incomplete.
Contract, Torts – Other
Updated: 27 September 2022; Ref: scu.402541
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