fellow and welcome to this data law. Webinar on misrepresentation. Andi litigation are drafting checklist. And really, what we're doing here in this webinar is we're appealing to both litigators Andi people who drafting because it's two sides of the same coin we're looking at drafting to avoid litigation on. We're looking at Mr Representation in terms of bringing a case in Miss Rep. So whether you're with me in house or whether you're in the commercial team, corporate chain drafting agreements or whether or not you are about to embark upon litigation of misrepresentation, this webinar data law is for you. If we had managed to achieve what is set out in the content, we will be doing incredibly well. So there's the menu. Innocent, negligent misstatement, fraud, recision on. Then we want to look at the drafting, which is the entire agreement calls, particularly after the NOTT's forest caves. Dr. Because it's business, it's an exclusion to try in the contract stop Most contracts do they prevent mystery. That's exclusion clause. It must be reasonable under the unfair contract terms stretching miss right after signature that that's a sort of an expression of when people want to use a misrepresentation course of action, even though the agreements other than running on dumb, there's been a period of time. It's okay. And then it stops being okay on DSO. Misra becomes part of a sort of almost like a warranty used through the agreement. We'll look at that warrants and represents. That's a very popular phrase in drafting. Although these days most people tend to exclude the reps but warrants and represents, we need to understand what we're doing with that. So there's some drafting formula here, whether you are the defendant, all the claimant on by that I've had misrepresentation, cases that go both ways. You could be a miss rep claimant, and you can be the supplier to the agreement. So it sort of pick me. I'm really gonna be really good at this. Will you pick me? Oh, we'll pick you to do the services. Oh, you're not so good or whether there you're the purchaser on the supply will say we want to work with you and the purchaser will send or we've got loads to work for. You drop your prices now that the supplies Okay, well, you know, on the basis that you're gonna give us this volume of work, we will drop up prices. So you know it is it is really important to understand where the risk is. So we'll be talking about the way in which we draft agreement that litigators don't turn off at that point because it's the two sides of the same Quinn. You cannot litigate misrepresentation competently if you don't know what is in front of you in the agreement and how it resonates with the Unfair Contract Terms Act. And just with the meaning of the clause, it's no good saying over that's for listening. For drafters it's not. It's for commercialised cases as well. And then we'll finish off with a bit of consumer rights, which is just a breezed by comparison. It's so straightforward, really, bags. I act for the consumer. It's a bit unfair of me. Toe have a used car salesman. There is, but innocent misrepresentation is one of the categories we're going to start with its the lowest rung on the ladder. Everybody wants to sell you something. A representation is a pre contract actuals technicals and to have to be in the gum before the contract can be in the gun crime. But the point is that occurs before the contract, and it induces a party to sign up on the term. Innocent misrepresentation is the catchall off. It's not negative, not religion. Long cynicism. So, unfortunately, not many dead. Um, no action for damages as of right you can is a discretion route possibility. But damages in respect of Monsieur would be recoverable if they decide to exercise their discretion in Section 22 off the misrepresentation out when we have a little look at the 1967 Miss Record Act because it's quite a useful bits of kit before it was invented, this whole area was an equitable cause of action, which you know always is creative and interesting, but nevertheless can be a little bit uncertain. So the thinking behind the Misra backed was to put at least the recovery basis on the sound common law putting on duh. That's what happened. So there is the common little right to damages or a remedy, I should say, in damage is not a right to damages. It's discretionary. If it's only in, isn't But it does say you can have, you know, damages in lieu on what we look at pleading damages and knew what we're seeing. There really are damages, which are instead off recision. I've never rescinded to contract in all my years at contract. All chambers. No, once that wherever percent did a contract because it's sort of rewinding it back to the beginning. And when you rewind that contract, you you don't really get the same sort of loss that you would have if you terminated the contract. So it's quite sensible to put damages for bridge Andi damages in lieu off rescission. They're two different measures altogether. Damages for breach. I know you know this is have them back Sindel Oh, hello, Hadley and Backs and, oh, can we do one of these things without Hadley and backs in jail? But that's a common law loss. If it's damages in new in place of precision than we're talking about. Section two, we're talking really about an equitable measure which could be refunding the purchase price. We take things back to beginning. The first thing you do is pay me back the money I ever paid you on. Then we start building up from then, it can be a lot of damage is in view of recision quite significantly more. Then you have them backs in jail, so we'll have a little look at this. But of course, the innocent Mr Up. You never really get anywhere near that. You be doing well. I don't think I'd kick off something is Miss Traffic. I'm honest. I, you know, I might as a defendant say, Well, it was innocent. Yeah, it's not negligent. It's not force. It was innocent because I would put it into a much safer place. There's the section 22 damages in New. It's not the best drafting, really, is it? But we can see that to two other than fraud. So that's where we're going. It divides into broaden non fraud, but that they can say, Well, we were christened. It's impossible. Life's moved on have damages. Instead, the financial option is often the one we want. It would be equitable having regard to the nature than Miss Run from the Law said. There's a lot of equities still in there, isn't there on the equitable measure is within two to um so it's lost that would be caused if the contract were upheld. Loss that would be caused if it's rescinded, so you get to go forwards and backwards in the same section. Brilliant The one, Of course, that's up from that is negligent misrepresentation under the Misrepresentation Act 1967 where the statement is made by one contracting party carelessly without reasonable grounds for believing it's truth and the testes and objective one. And I have to say off work with some deer people. But they haven't got, you know, a brain between them. And they said all sorts of things. And when you sort of talk to them about it, either in cross examination or all behind the scenes. And you said what? Why did you see that? Why did you make that representational? I'll say, Well, because we wanted the work. Ellen, we wanted the contract. Isn't that enough? You know, not really no, objectively wanting the contract is not a good enough reason because there has to be some basis to the statement now. Really, I always think this is a question of jolly good disclosure. If you've got Johnny the disclosure, then you're gonna find out whether or not what supports that representation. I mean, it's worth a specific disclosure or a pre action application for disclosure. Why did you make that statement on what basis? All fax matters, all documents, etcetera, leading to the making of that statement you are scouting round before you shoot your bolt at what is the objective, reasonable basis for saying what you did on hopefully exists? Probably it won't probably have just said it, but in this section off negligent misrepresentation, that is no requirement to prove the statement. It's a the maker of the statement to prove that it was in fact, false. So it's not fraud. Once the defendant proves it was in fact faults. It's for the maker of the statement to establish that it reasonably believed the truth off the statement. So, um, once it is in this fall's, then if you can show that all I have to show is that it's false, and once it's false, it's up to you to sort of say, Well, we wasn't false when we made it because I'm here is the evidence to support it, and that's really a question of documentary evidence or not. If we have a look at the talked equivalent, which is misstatement, that draft to still get asleep. Everybody that I work with in the drafting community is really switched on to the idea of rights and remedies coming from the contract on dealing with an allocating risk and exclusion on allocation of liability. And so, but they tend to lock down on the salt. And the thing that happens with Miss Statement in Talk is it comes over the hills on a white horse, waving a sword, saying, Don't panic. I've come to rescue you because taught exists in a parallel universe governed by a special relationship. Not the ginger beer in the snail, but a special relationship That's Hedley, Byrne and Hella. You remember that one? He sits at the golden oldies. Hello, Golden old is what you do in a quasar contractual. So pre contractual. Certainly, if you have a contract, you will automatically have one of these Endured two for the price of one on, probably for a degree of time. Afterwards as well is that one party assumes responsibility for certain things in relation to the other. So in tortious claims, we're not talking about how them back cinder, we're talking about reasonable for civilities. If Ugo saying something that just doesn't have the wherewithal to support it, then you're looking at a foreseeable loss. And to be recoverable, it has to be reasonably foreseeable. It's loads easier than Hadley and backs and tell you much more likely to succeed in remoteness in talk than in contract. And often that's why we nick around the back of the contract. Andi use the talked it exists. Is a parallel universe, a parallel cause of action. Jim Business development agents keep me awake at night on. The reason they keep me awake at night is because they invoke the brand for whoever I'm working, but they don't have the same sort of contractual control. But even that period of time leading up the negotiations leading up to the contract, there's already a special, sufficiently proximate relationship. Until there's no contract, there's no contract, but there is a taut on The use of misstatement in toward has been so useful because these days in the we used to do pure economic loss. Remember pure economic junior books Henderson and Compartment. Nobody bothers thes days, and the reason every bombers is that it might be useful if you've got a sort of manufacturing situation where I come in and put in. I am, you know, plant or whatever, and then it causes a loss of profit. Okay, but it won't be needed if there's a special relationship because they you're in deep, then So for professional services where we live negligence, we often negligence. Part of negligence is based on when you told me you could do this and you said you could do that. So it has an element of mystery. The relationship in professional services is already sufficiently proximate not to worry about all those old exam questions on. Can you get pure economic loss? Of course you can squeeze I contractual. It's before the contract. It's negotiation. So yeah, it can be a really useful pumps off the misrepresentation talking. Hey, it's my baby. It's my favorite fraudulent misrepresentation in order to be fraudulent now, difficult to plead. Need to know what you doing when you plead. It might need to have enough particular swell to plead it correctly and on to be able to show why it is that it was fraudulent, that elements of fortune miss wrap our knowing without belief in truth. Now those two have an element of intention typical intention, Almost criminal intention. If you want a better word because we don't do a lot of intention and civil, you are the breach or you don't. But here I know what I'm saying is untrue and I'm saying it anyway. No, I don't think I believe it, but I'm saying it right, and that's objective. In other words, nobody could believe it to be true. Duh. Obviously, it's not true. So clearly what you're saying cannot be substantiated. There's a little bit of a kind of cross over their heads off towards negligent a little bit, but it's a sort of scale. It is the third one that I think's interesting, which is an extent of recklessness on that. Recklessness is such that you don't even care, do you? And you're not even going to look, and you're certainly not going to do the piece of work that would substantiate the representation. You're just gonna say it because you want the contract so that recklessness is an issue that is usually something that comes out of a good cross examination. You have to be able to show a cavalier attitude on certainly no supporting documentation. So there is a very significant crossover, really, Between the visions, unfortunate misrepresentation in that element of your recklessness, which is such that you know, is absent. I don't have a belief, you know, it's absent. The requirement of proof in the absence of honest belief does not mean the claimant must prove the defendant's knowledge of the falsity. It's enough to establish that the latter suspected his two human might be inaccurate. On neglected to even inquire into its accuracy, the person takes upon themselves to make assertions as to its their ignorance, whether they're true or untrue, they must, in a civil point of view, beheld as responsible as if they have asserted that which they know to be untrue. So it is that problem of just not caring. What do you say at the best case? We have a few recent ones, actually. But the best case unfortunate misrepresentation for my money because it's quite a colorful case is B Sky B. Andi BDs. And it's from 20 turn. It's a TCC case on, but it was really lost on the kind of a witness who unfortunately went into it. This box, his name was Joe. Um, he's gone down in legal history really has poor old Joe on. That's because he got into a muddle with his evidence on Bond didn't do very well on cross examination on the port, Mann was in there today in the witness box for day is getting into a progressively more and more hounded about what he was saying. And it's that old saying about credibility. Once you get them on one thing, they sort of aren't credible for anything else. And so what Sky did very successfully was show that the document that Ed that Joe had used to make a statement about the timing of the provision of the service, and so the downtime for the phone lines because they were doing things with the phobes, um, was just plucked out of their on. Although Joe had some documents, those documents didn't go far enough to support or could never have supported the representation on. It'll only take a few days or a few weeks. A made A representation will only take a few weeks. Be false. It's taken six months. See, you knew it would take longer than a few weeks. Not really, because she didn't know or you were reckless. You just said it to get the contract de DDS intended. The claimant would act in, right? So they're asking sensibly. No, you know, sales puff, but they're asking sensibly. Sky relied on the representation to his past. Me, the pen I now need to sign the contract on bond it comes out in taught is sort of in deceit. It's called deceit in Taught. It's the same elements, but in in a special relationship are supposed to a pre contractual sent. But you can see that it's very close to negligent. But it is that absence of caring or this cavalier attitude, Um, and you probably plead both after the alleged to see how long this is. This this judgment pack up to 335 As to the alleged misrepresentations made prior to the prime contract, BDS represented that they carried out a proper analysis of the time to complete the delivery on. They had reasonable grounds for holding the opinion that representation was false. There was no proper analysis. There were no reasonable grounds. It was made dishonestly by Joe on dear. In making the misrepresentation, BDS Intend is gone to rely upon it and to select TDs for Sky Project on Sky. Ditto on their liable in deceit. So deceit is the torch on fortune. Misrepresentation is the contract, and what you're you're doing there is you are joining everybody of joining Joe when you're joining the company and his his around that misrepresentation. Now, as I said, it sounds in deceit as well. There's om being Glen called, which is a good example off deceit. This is floor. It is a Romanian law and English law saying on what I thought was interesting about this one is the deceit is is carried out by the agent acting on behalf of the prince. But I think it was difficult when you have Assad breaking the chain or a link in the chain stop necessary break in the chain and the big difference. Or people say, What's the difference between a warranty and a representation? The first thing I would say. Only one person can make a warranty, and that's the warrant. All on. They will be in the agreement with you. Anybody could make a representation on your behalf, and they don't necessarily have to give it within the context of the contract. They can give it in talk could give it before the contract and sell gives alongside the contract. So the agent here is acting on behalf of the principal Onda, Uh, even if it hasn't been passed to him. The fact that you're you're in that kind of guys off on behalf of for and on Behalf Old is enough to trigger the loss phone. It's enough to align the agent with the principal, and the agent principle was established by 1954 case that we came back a while. There, a principle is vicariously liable for the fraud of the agent, even though you know the carrier's liability is often linked to employment once not necessarily confined to that, you could be vicariously liable for others so that if an agent makes a statement in the scope of his authority, the agent is himself fraudulent. The principal will be liable on the Lord. If I can read Havens Trustees mission just in case it comes up to the Supreme Court, I must study as a result of Scottish system. On the whole case was a back grass on they bought in a state with no grass, and they thought they would be grounds for shooting. And there weren't enough birds when they got there on what was interesting about it was not really that it was about a Gillian Grouse, but the line of communication have for links in it to on the one side and two on the other. So there were two people giving and receiving the representation that ultimately translated into the acquisition of the estate. The buyer and seller. So you have Gilly Gilly by a seller in this line of communication. So obviously, I didn't hear you say that. You know where you said it to your man, whose man said it to my man who said it too. May right. Got it. Hang on. Let me do that again. You know, it literally is parts like a bucket down the line. But the court said it doesn't matter how many links you have. If it operates on the influence of the decisive the decision making capacity of some say yes. I'm gonna buy that estate with all those birds or not as it translated. Then it operates sufficiently for misrepresentation. So it's quite different, isn't it? To a warranty, uh, where an agent comparable warranty. A warranty comes from the contract. In the agent is a party to the contract, so we won't be doing that. This is very different. So it is about making sure that the agent is put into the same category. So it's the company by off for on the agent. For on behalf of the company, you keep leading them together. We have had a recent case which everybody is aware of, and it's the Vision Express case in 2018 Andi The mission expressed There were quite a few employees who made a representation in relation to setting a franchise on because it's easy to be vicariously liable for employees. But we don't often get a fortunate miss. Reckon this one laws. This is Morgan on the Vision Express case. Um on he's he's looking at the fraudulent misrepresentation by employees on behalf of Vision Express. There's a rebuttable presumption that it's intended to be relied upon him. The point is that if you say to people here is a really good optician. There's loads of people coming can hardly get in through the door. There's so many of them on. Of course you know it isn't but the falsity is really another example of recklessness. So they take on the front chance for that footfall to support it on the recklessness, then creates a presumption. Of course I should. So you know it is so reckless. It's it's fraudulent, mis read. Therefore, it will necessarily cause somebody to sign unless the claimant disproves otherwise. So it's easy. As soon as you hit the jackpot on recklessness, then you're shifting the burden of causation. In some presumption, we have had a good recent example on causation. This is a claimant seek into rescind a contract for Miss Rep, but for the misrepresentation would not have entered another. But for test, I always think it's really straightforward. The mystery was fraudulent. The but for test is weaker. Where the Miss rap is merely negligence. The claimant need only show that, but for the miss rep, he might have acted differently On the problem is that if it's not fraudulent mystery But it's negative, Mr. If you have a good defense on causation, you don't have it on fraud. You creates a presumption do have it on negligence. So the effective this was a Miss trip was one of three factors. Ah, so it is one of three factors. It has to be the dominant or effective cause. But fortunately it waas here. It's although there were other two of the factors those factors evidentially We're sort of 10 or 20% but the main 60 to 70% off. The reason that we got into this in percentage terms to make it clearer. Waas the miss rep. So the effect then is recision and interesting. This one, the rare cases where they do rescind. I mean, I said, I've never dealt with one, but other people have. Obviously this is one on what happens is that there are two agreements. There is agreement A, which is then replaced by agreement be on the Miss rep. Causes agreement. Be so we're sending because it's clearly wrong. What have you got? Not nothing. You go back to agreement A. Such I think it's really great is not so. It's a completely logical approach to recision, very rare, because measures are down on October Singers Too late. It's all gone on. We'll just get the money. Thank you. But what they do is say we don't want agreement be your only said we could have agreement beyond this basis, this basis wasn't true. So we will go back to the status quo. Ante, we'll have agreement. A thank you very much. Rescission did not bring the contractual relations to an end. Uh, resulted in an earlier version of this is quite good. We don't have a lesser precision. So it's quite interesting to see how that was gonna work out whether you want it. Okay, material influence. So it's no defense to show This was kind of what we were saying before that. The misrepresentation has it had that material has a dominant, decisive, effective cause off inducing them into the contract. As I say, pass me the pen. You've got to be materially influenced. Had some impact on the thinking. It was actively present in his mind is very interesting, isn't it? Because most of us take most of what people say with a pinch of salt. I have very depressing conversations with people who tell me that they're very busy in there earning lots of money. Or is it? You think? Why are you telling me this? What are you telling me? You're really really busy and you're earning loads of money, and you're such a success because you're probably not. Actually, would you need to spell it out to May? Um, but you do get corn and don't you with such people. And I would think that you know, that you take it with a pinch of salt you or do you believe everything everybody says he passes of my aged showing. It probably is, uh, it has to be actively present in the mind. And of course, it's a reasonable. I mean, you could you could genuinely but stupidly believe it. And that wouldn't meet the test. Everything we do is objective, but I like that actively present in the mind. You know, I think that's great. That's a great sort of way of explaining causation there, um, contesting as it along with the with the list evidence. Well, that's there's a question is now we got in the evidence, um, and the Goldman Sachs cases, just reminding you that you do need to evidence the statement on you have to construe the statement in the context. So if you go to a trade show and you're looking around the stools, you know, and so he says, roll up. Roll up. Would you like to buy? It's a fantastic little piece of kit. Not only doesn't make the tea, but it also tells you the weather. I mean, really. So you do you wear a, um, a trader? But if you're in negotiations and its pre contractual enquiries and you say it's their ISP, Estelle's in that building or any other environmental concerns all. Have you had a dispute with your neighbors? No. No. We love him to bed to have dinner every second Wednesday. Yeah, actually, we're going on a minute now. This is a kind of run up to a convincing job. We're asking you deliberately expressly. These are pretty contractual enquiries. The context is very different, isn't it? And that's what the case is about. The statement objectively according to impact that it might be expected, not toe have on you because you might be overly cynical or overly naive, but on a reasonable bold listening to the nonsense that's being said to you. So the defense's mind the gap, the defenses are mere pops on this mere puff. I love that sales puff. I need only put it into inverted commas just to avoid any difficulty, a mere statement of opinion. Now. The problem with opinion is that it's not so easy. I wouldn't say oops, 1,000,000 opinion, because if you are the expert on whatever it is and you're much better at forming an opinion than somebody else, then we will believe your opinion is as if it's fact, because you're giving an opinion, you're giving us expertise. So the general rule is that non disclosure, so not saying anything is not misrepresentation baths. It's not so simple because in sometimes staying stone, well, it's on the hands, too. The illusion that you're creating the personal on right kids got no okays now, but he should have said something about inside who had inside information. Um on did it was held to be under no duty disclosed this fact to a shareholder from whom he bought some shares. While I think this legislation about this at this moment was quite an old case, But, you know, silence is often not saying something is quite difficult. Case to run, you should have sent something. Why didn't you mention something? Well, it's an easier case if you said something that was actively wrong than if you didn't say something until I think that's what I mean. But there are times when the omission is actionable. Onda. We do have the look of the consumer stuff. We have the commercial practices, unfair commercial practices. Andan omission is certainly actionable against the consumer. The failure in a consumer, but it's less potent. B two b. It depends who you got a za client. Okay, well, we've talked about the sort of root off litigations been very litigation full at this stage in the webinar damages for fraud. We should just finish that off. That's to two of the act on and it is different rules, As I say to Handley and backs and Dale damages for negligent misrepresentation. Losses may be recoverable even though they were not foreseeable. Um, on dumb, the court can refuse to allow rescission except in cases of fraud which automatically send the contract on. Do you can have damages as well. So fraud self opens more doors in terms of it must rescind you can elect, not rescinded question. But you know, the court said, Well, I'm I'm going to rescind this contract on you know. It's alright. I've agreed not to do it, we're gonna struggle on with these nutters. You would get rescission as of right, because it's wrong on the damages for fraud should be significantly greater than damages for negligent misrepresentation. Because I don't have to be foreseeable. They just have to be equitable. So no, it's it's It's the one to go for possibly. Can their Section 21 on negligence. Um, so the person making misrepresentation reliable in respect of their off hat Had the Misra been made fraudulently, that person shall be so liable notwithstanding, it was not moved forward gently unless improves. He had a reasonable ground. They're quite tricky. Those two sections on their one deals with, for one deals with negatives, basically. But the negligence one stops at Yes, you get the money just a minute unless improves its got. He has got a a reasonable ground. Say where's fraud doesn't give you a chance to do that. Really? So negligence is is quite it gives you that sort of less out in terms of loss. Okay, damages in new um, which is the rescission point. And as I say, three idea here is not recision plus damages but damages instead of recision. That's again an equitable point. So you can have damages in new of rescission. So in the fraudulent one, you get rescission as a bride, and you'd get your damages in the negligent when you'd have to elect. So Okay, so the frog jump when you get both to the price one negligent it reelect do you want? Which one do you want? Now? I have to say that I'm case recently where, um I have to think about the fact that some of the contract was okay and other bits the contract were not okay on the whole case turned on the question of partial recision. So I'd like that bad, but not that. So. That was a real problem, because I didn't think I wanted to rescind the contract. I just wanted damages into your precision. The problem is it. If you are willing to rescind, partial rescission is not available so that the risk you run is that the defendant says, Yeah, let's rescind this contract when you're gonna have to pay me loads of money because you're going to rescind it. That's great. Whether it's negligent or fraudulent, you still end up with an equitable rate under whichever subsection of to. But the reason they're saying that we want to rescind it is because you would have been a financial remedy only, and if, for example, they've been a conveyance of land with anyone to keep the lunch bought the land, you don't give the land back, and then soon insolvent company or a company that's no longer there. So you do know want recision because recision means I have to redefine the contract back to the beginning. So you have to think about this and you can't do partials. You can't pick and choose can't therapy. I don't know why it seems ridiculous to May, but there is a recent case called NatWest Markets 2019 that there were bars on partial recision. It's inseparable parts of a single contract, and they form a whole. You can't pick and choose just, you know, love. I'd like the money. That sounds great. Everybody wants the damages. I want to get out of a bad scene. They've been lied to. They don't want it there. The trouble is, you will lose everything in that contract. And if that defendant is not good for the money, then you probably aren't. You don't want recision, Andi. With these claims, you've got to be prepared to run the gauntlet of precision before you can convert into damages. Let's now focus on the drafting. Don't switch off litigators because we're gonna draft. If you litigate a clause, we should have a look at some of the drafting off it on. The problem we've got is that when we deal with misrepresentation in the contract were normally dealing with it before the contract starts. A typical entire agreement clause consists of the following elements, and I put a capture because effectively, what you're doing is a form of capping on liability, and it doesn't capture an amount, but it still excludes liability for Mr EPPS. So my cap is a reminder that it's an exclusion clause, even though it isn't in the exclusion of liability it could be. You could exclude liability for breach of contract told, such is the duty Miss rap, you know, whatever, but this is a different part of the contract. This is normally towards the end, and I was walking down to chance related batch chambers and my friend friend for me to have a lovely case on Misrata and I said, No, you have no really have hell and I've got a case for you on Miss Rep. But I said, No, wait a minute, Fred Open nor contract Read three clauses up from the end. What does it say? Entire agreement, Right? Okay, read it out to me, Fred. Know what? We haven't got a Miss Wrapped case. That's because these things are jolly good. They really off super duper. They work. So the typical entire agreement calls is about the whole agreement, and it's supersedes the previous agreement. No, all representation is binding. We acknowledge that we not relied on Anybody needs words or statements or promises on the these terms prevail over anybody else's other terms and conditions are excluded unless we can't exclude them on the only remedies that are available will be for breach. Will have none of that recision. A. It's complicated, but we don't want to do it on a statement that the clause does not exclude liability for fraud. Now liability for fraud must be excluded. And if you don't exclude liability for fraud, in other words, sorry if you don't exclude that the action of the clause for fraud. He had carve out fraud. I fraud is actionable. It's gonna go back on the table. Then you're going to hit the buffers on the Unfair Contract Terms Act because this is an exclusion clause. However it's framed, it's an exclusion clause, and if it's an exclusion clause, it will attract the Unfair Contract Terms Act. I mean, look at this in more detail, please. Now the Misrepresentation Act 1967 Section two dealt with damages Vote complicated. Section 11 off the Unfair Contract Terms Act Cross refers back to Section three and vice a versa section through the Misra, Packed says, If you want to restrict liability for Miss Trap and it must be reasonable and it refers to the test of reasonable, that's we're very familiar with that. Under Dr Don't try this. If you're a consumer coming to consumers in a minute. No, the Unfair Contract Terms Act reasonableness is one of the big changes in contract, nor over the last six years, and we've had a tremendous amount of authorities which exclude absolutely everything you know, and they're not paying a penny, and the court upheld them. So in a very particular place on those. We're looking at an entire agreement clause and considering whether it's reasonable to say you've not relied on anything, I've said if you want it, it's gonna be in the contract. Normally these clauses work, and they have a very significant pedigree off your business to business. The aspiration of certainty is a reasonable one, and I found this last year in 2018 year for 2018 which was first Tower, and this is a pre contractual lease set of enquiries. Andi, they 50. You said they got asbestos. Now they had. This is the no specials on. They had a specials. I spent a fortune getting rid of asbestos. It could be a real pain if you try and move. And so they sued them for Miss Rap and they said, Hahaha, half we've got entire agreement pills. Uncle said No, you have has been beautifully drafted, but it's unreasonable because if people ask you in a pre contractual situation, have you dealt with us best ofs and you say yes on the answer is no. Then it's correctly draft, but it's unreasonable. Ditto with the um Vision Express. Be known Reliance is unreasonable due to what? The unequal bargaining position off the parties. The fact that the claimants did not nor were advised to take on legal advice on the JV, which is this franchise really documentation. So they got into it. Andi then realize that they that it was wrong. Onda and the court said, Well, I'm sorry, but you weren't told to get legal advice. It's disparity of bargaining power. These are individuals who are coming into your business on Dabbagh. Field Vision Express Limited were held to be, as we've already seen, fraudulently misrepresenting the position on Section 31 of the Misrepresentation Act is unreasonable. It's good to see that I think I'm concerned about the extent to which it's possible to exclude Miss Rap, and it's good to see that. I mean, it's fraudulent mis reps, so that could never be excluded. But it's good to see the clothes being not down irrespective of the type the flavor off Miss Rap. It's good to see the clothes being knocked down. Now. The one thing you cannot do is exclude fraud, so you have to car about. It gets a bit confusing because you're excluding from the exclusion clause this is clear, so it goes back on the table. Nothing in this clause excludes any liability in relation to Mr EPPS. Made fraudulently on. The problem is, if you don't put that little bit of kitten than the whole exclusion pools is unreasonable. So the two cases that say that on most good precedence put it in our Crystal and Thomas Witter. And the argument was, Well, we're not arguing for fraud. Were arguing negligent misrepresentation. Of course, Event doesn't matter. Potentially it you've reached for the stars. It's not possible now. The excitement that's been happening in the draft in community is that we all use precedence from a certain database. Andi, the precedent that was used, had a version which said the statement contains the whole off the contract, Uh, that the contract is everything on. The parties have not relying, too. It's a statement of non reliance on the only contractual remedies will be for breach. We're not having any, you know, recision. And you call about the fraud. Fine, Perfect, beautiful. So to bay, fully effective. That's what you gonna have a non reliance? I've put it in red. Is that the expression I was walking down Chancery Lane. I said to Fred, Read it out front, he said. They we acknowledge that we have not rely. Uh, well, um, have they carved out fraud? Fred, they've carved out for a while. We were not going to go far on Mr Up there because the contract is beautifully drafted. Andi. It's equal bargaining power. It's likely to be reasonable. It would have bean much better if on the next slide, which is the prevail the claws had said this version supersedes. I'm not used non reliance I've put supersedes in red, and the reason it would have been much better. And then that's aimed a battle of forms. The reason is that this has been litigated recently in the Knots Forest case. Andi Hawass E. On Nottingham Forest is a case where they tried to knock out the course of action for misrepresentation on a supersedes version. This agreement constitutes the entire agreement and supersedes, in other words, takes over from whatever anybody else has said on the court, correctly said no, no clear words. Non reliance is the job you need. So as things do exactly what they say on the tin these days, I've set out a clause for you. It's no reliance on any statement, promise, representation or undertaking. And I put those words in red. And the reason I put them in red is to remind you that their various different approaches to Mr Up, including using ah warranty in the agreement as a representation, including using misstatement in tool making a promise which is an estoppel claim, or a representation under the 1967 act. So, you know, you've got to be fairly wide in the drafting of it. And, as I say, I regularly see entire agreement clauses that have excluded some parts of it. But not all of us. So very important to make sure that you've excluded all of those different types off causes of action types of statements because they're all slightly different on they have a different cause of action associate ID. But the non reliance clause operates. Its is excellent. It operates. So, you know, certainly one to use now if we have a look at the banana skin here, what is the scope of the exclusion clause that clarifies the type of cause of action that you have against the drafting? You have to read the drafting extremely carefully to work out what it is they've excluded on watching good to go on as a litigator. And if you're drafting with may look what people can do, they can Nick brown, the back in and taught that can use a stopfel that can use the warranties. Representations on representation is under the 67 that usually that were does appear on undertakings of any kind. I it's got to really be scoped can from thing. Okay, I've included a table which sets out the difference between ah warranty and a representation on There is not done. That is that I've seen misrepresentation. Cases fail in their difficult bits of litigation, and what happens is that they fail because the representation doesn't stretch. And by that I mean that you can make a warranty. Andi. It will work for a period of time under the contract, if not all of the time of the contract. But a representation only last for one moment in time, which is the point of execution. So if, for example, it's correct for a few years and then it becomes incorrect, you have no case in Misra because there's no repeating inducing. You're in the contract and it was OK for a while then it wasn't OK, but it was okay for a while. So the mystery is not there because it what must have been true if it was all right, even for a while. So I think, really, the issues got to be that you can't solve stretch the Miss rep. It's not. It's not possible to do that, that they only work. They have to be true at the point of signature. Now, I did say that we look at warranties as well. Um, just mind the gap between a warrant indirect presentation. I've included the in vertical and a mole case because it's one of those mix and match cases where people often use in the drafting. This is in the agreement now warrants and represents on the case. Really said, Well, is it a warranty or is it a representation? You know, which is it? What it could be? Either Judge Andi. If you are working with those, then you have a choice. But in the inverted case, they put warranties in one clause and representations in another good tick drafters. And there's no cross pollination than the warranties of warranties. Aaron clothes for the reps and reps. They're in close, fine, so shifting them apart would ring fence. The warrant is on. Stop them leaking into representation ins. You should check list litigation checklist. Representation could be a warranty or guarantee, but actually it's representation, really a horrible case at the minute on a website, and they referred to it as a guarantee. And it's not. It's a representation. We guarantee that you will have 100% satisfaction less representation in the contract before it. Innocent. Mm Negligent evidence. Fraudulent recklessness. Deliberate. Is there a defense causation or sales path? Is there a parallel cause of action in deceit? All taught misstatement shank the scope of the exclusion clause on Don't give up. Remember, parallel universe is Stopfel or intell. Check the entire agreement close. Is the exclusion architecture reasonable equal bargaining power or just That's a line we asked you to tell us the truth. Does the clothes carve out fraud Because it doesn't? It will be unreasonable because you can't protect them from fraud. Here's the dropping tip checklist for purchases. If you're drafting with may, you want to preserve your claim. Review the extent of this trouble. If it's um too wide, it will defeat everything but fraudulent misrepresentation. If the party to an agreement in 10 the warranties to be included as reps, you must refer to them as reps or reps and warranties you supersedes. If you want to keep Miss Wreck alive, that's a double bluff, isn't it? But when the agreement combined within the agreement, combined warranties representation Such a. That's your easiest way of trying to get people into a situation where you can mix and match. Um, this is assuming that you want to keep misrepresentation alive. If you're a seller, it's the opposite because you won't want to keep it alive. Make sure you prevent the parallel claim in Misrata by removing any Miss wrapped language. Include those now warranty Rep. Promised. Statement Undertaking. You're really covering a very big scope off causes of action there, including a clause reducing your liability to that of damages instead of precision. So basically it's a warranty, so it's it into the meanest of damages. Used exclusion clothes for backup, not just the entire agreement. Close non reliance you can put superseding. It won't hurt but it won't work. Car That fraud said that you keep the clothes as correct. Finally, consumers perfect. Don't try this at home if you're drafting in terms and conditions with consumers, because Section 50 says that if you give information about the trade or service it is binding. It pops in as a condition, and there is Section 50. If you take it into account when deciding to enter into the contract or when making a decision, it will come back on and cause there's a rest of section 50 to be relied upon, it becomes a condition. Andi. It can also mean that you can cancel the agreement so, you know, sexual 50 on enables the consumer a defense or a plane for misrepresentation. And the remedies under Section 54 mean that you could have a reduced price. You can have damages. You can ask for re performance or a refund, so there's quite a normally people want to refund under Section 54. That's how they want all damages under or damages for the loss that it's been caused. But you cannot use an exclusion clause with consumers. I'm sorry the bus doesn't stop at that bus stop, you can't. I have also included the unfair commercial practices regulations. They've been amended to enable a claim for damages. And that's a misleading statement. And I've done these cases against people who say, closing down on the note or end of line clearance and it sort of goes on for 10 10 months. Um, we talked about omissions. They are actionable under the unfair commercial practices regulations. You have to be a consumer thes air consumer rights only, um, so well done. Fakes. Wow. Remember, there's a contents list. Innocent, negligent misdirect. What's the difference? Do we do we know parallel cause of action in taught? We talked about a lot about fraud on the recklessness and the evidence and talk about negligence. I'm very exercised about making sure you've read the contract. You drafted the contract correctly on DNA. What's Forest has helped us really clarify the difference between supersedes, which doesn't work on non reliance, which does? It's lovely to see some actor unreasonableness. We don't get a lot of it in exclusion clauses, but you've got some there not so good to keep trying. Misrepresentation. If the reps made have been true, albeit for a limited period of time on. I've talked about warrants and represents in the Breslin case for the course of What are you mixing or keeping separate? And finally, we considered the consumer rights perspective, which is a very protected position under Section 15 Section 54 c R A. I hope that's been some help, not an easy area the line.
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