The court was asked whether certain provisions fell within section 3 of the Misrepresentation Act.
Held: Christopher Clarke J referred to dicta of Gloster J and said: ‘In Springwell Gloster J took the view that terms which simply defined the basis upon which the parties were transacting business did not fall within section 2 of UCTA; otherwise, as she said, all contractual terms that did so would have to satisfy the test of reasonableness. It is obviously advantageous that commercial parties of equal bargaining power should be able to agree what responsibility they are taking (or not taking) towards each other without having to satisfy some reasonableness test. At the same time there is a danger that the ‘ingenuity of the draftsman’ will insert into a myriad of contracts a clause to the effect that the basis upon which the parties are contracting is that no representations have been made, are intended to be relied on or have been relied on, as a means of evading liability which is intended to be impregnable.
In this respect the key question, as it seems to me, is whether the clause attempts to rewrite history or parts company with reality. If sophisticated commercial parties agree, in terms of which they are both aware, to regulate their future relationship by prescribing the basis on which they will be dealing with each other and what representations they are or are not making, a suitably drafted clause may properly be regarded as establishing that no representations (or none other than honest belief) are being made or are intended to be relied on. Such parties are capable of distinguishing between statements which are to be treated as representations on which the recipient is entitled to rely, and statements which do not have that character, and should be allowed to agree among themselves into which category any given statement may fall.
Per contra, to tell the man in the street that the car you are selling him is perfect and then agree that the basis of your contract is that no representations have been made or relied on, may be nothing more than an attempt retrospectively to alter the character and effect of what has gone before, and in substance an attempt to exclude or restrict liability’.
Judges:
Christopher Clarke J
Citations:
[2010] EWHC 1392 (Comm), [2010] 1 Lloyds Rep 123
Links:
Statutes:
Misrepresentation Act 1967 3, Unfair Contract Terms Act 1977
Citing:
Cited – JP Morgan Chase Bank and others v Springwell Navigation Corporation Comc 27-May-2008
The company alleged negligence by its financial advisers.
Held: Gloster J said that the absence of a written advisory agreement is a strong pointer against the existence of a free-standing duty of care to give investment advice.
Gloster . .
Cited by:
Cited – Springwell Navigation Corporation v JP Morgan Chase Bank and Others CA 1-Nov-2010
The court was asked as to whether representations has been made.
Held: Aikens LJ referred to a provision stating ‘no representation or warranty, express or implied, is or will be made . . in or in relation to such documents or information’, . .
Cited – Avrora Fine Arts Investment Ltd v Christie, Manson and Woods Ltd ChD 27-Jul-2012
The claimants had bought a painting (Odalisque) through the defendant auctioneers. They now claimed that it had been misattributed to Kustodiev, and claimed in negligence and misrepresentation.
Held: Based on the connoisseurship evidence, the . .
Lists of cited by and citing cases may be incomplete.
Banking, Torts – Other
Updated: 19 August 2022; Ref: scu.416636
