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Misrepresentation—falsity (fraudulent, innocent or negligent misrepresentation)

A claim for misrepresentation requires that the statement made must have been false. This is the ‘falsity’ requirement.Having established the falsity of a statement, however, the next question is whether that false statement was made fraudulently or innocently. If the false statement was made innocently, then there is yet a further question to consider, namely whether there was any negligence involved in the innocent making of the false statement.This Practice Note considers the requirement for falsity in a misrepresentation claim and discusses the distinctions and reasons for pleading fraudulent misrepresentation rather than negligent or innocent misrepresentation, with reference to the Misrepresentation Act 1967 (MA 1967). It also sets out a number of pointers for assessing a misrepresentation claim.For guidance generally on misrepresentation claims, including what they are (and are not) and the key constituent elements for bringing a claim for actionable misrepresentation, see Practice Note: Misrepresentation—what it is and similar claims.For related Practice Notes on remedies of damages and rescission in misrepresentation claims, see Practice Notes: •Misrepresentation—damages as a remedy•Misrepresentation—rescission...

Property—enquiries before contract

Property—enquiries before contract This Practice Note looks at the role of enquiries in the due diligence process and what to do when faced with preliminary enquiries in commercial property transactions. What are enquiries before contract? Enquiries before contract (also called pre-contract enquiries or preliminary enquiries) play a part in various scenarios; eg they are raised by a buyer on the acquisition of freehold or leasehold land, by a tenant before the grant of a new lease, by a mortgagee before taking a charge over land or by a landlord before accepting a surrender of a lease. For simplicity throughout the remainder of this Practice Note, reference will be made to ‘seller’ and’ buyer’ although this can include landlord and tenant or mortgagor and mortgagee as appropriate. Enquiries before contract take the form of questions asked directly of the seller by the buyer (although almost invariably with their respective legal advisers acting as intermediaries). Although enquiries before contract are often treated as a stand-alone part of the...

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Consultancy agreement—company and individual—pro-client (short form)

Consultancy agreement—company and individual—pro-client (short form) [ON HEADED NOTEPAPER OF CLIENT COMPANY] [Insert consultant’s name] [Insert consultant’s address] [Insert date] Dear [insert consultant’s name] [ Consultancy agreement OR Insert name of project ] Further to our recent discussions, I am pleased to confirm the terms of our agreement regarding the provision of your consultancy services to [insert name of client company] (Company). 1 Term 1.1 [Subject to the terms set out in this letter, your engagement [will commence OR commenced] on [insert date] and will continue unless or until either party gives to the other not less than [insert number] [weeks’ OR months’] prior notice in writing. OR 1.2 Your engagement will be for a fixed period of [insert number] months from [insert date], subject to the terms of this letter and subject to the right of either the Company or you to give to the other not less than [number] [weeks’ OR months’] notice in writing during such fixed period terminating the...

Distribution agreement—non-exclusive—short form

Distribution agreement—non-exclusive—short form This Agreement is made on [date] Parties 1 [insert name of party] [of OR a company incorporated in England and Wales under number [insert registered number] whose registered office is at] [insert address] (Manufacturer); and 2 [insert name of party] [of OR a company incorporated in England and Wales under number [insert registered number] whose registered office is at] [insert address] (Distributor); each of the Manufacturer and the Distributor being a party and together they are the parties. Background (A) The Manufacturer manufactures [and supplies] the Products. (B) The Distributor has agreed to distribute the Products on a non-exclusive basis in the Territory in accordance with the provisions of this Agreement. The parties agree: 1 Definitions 1.1 In this Agreement: Active Sales • has the meaning given in Article 8(7) of VABEO; Affiliate • means any entity that directly or indirectly controls, is controlled by, or is in under common control with, another entity where “control” means the beneficial ownership of...

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In property sale contracts, is it possible to exclude liability for inadvertent misrepresentation in replies to enquires before contract?

In property sale contracts, is it possible to exclude liability for inadvertent misrepresentation in replies to enquires before contract? In commercial transactions it is frequently the case that an ‘entire agreement’ clause will be inserted into the contract with the purpose of seeking to exclude any liability in respect of matters arising outside of the terms of the contract. This will include representations that have been made with regard to the contract which are in fact inadvertent misrepresentations. An effective entire agreement clause therefore prevents the rescission of the contract or a claim for damages on the basis of a non-fraudulent misrepresentation. The standard contractual terms for commercial property sales include a clause of this type and such clauses are also standard in residential property sales. Similarly, exclusion clauses can be included, and are included as standard, in respect of liability for misrepresentation. It is essential that such clauses are carefully drafted, as a poorly drafted clause will not necessarily protect against pre-contractual representations. If this is intended,...

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The treatment of legal and equitable interests in WFOs and injunctions in other jurisdictions (Segulah Medical Acceleration AB v Tripathi)

Dispute Resolution analysis: The High Court was seized with cross-applications in the context where a worldwide freezing order (WFO) and proprietary injunctions had been granted at a without notice hearing and continued thereafter. The court considered whether to discharge a WFO and proprietary injunctions that had been obtained based on an applicant’s undertaking not to enforce in any other jurisdiction other than England and Wales. The court also had to consider whether a sole shareholder in a company who had the power to control that company, owned that company’s assets in equity, such that the company’s assets could be said to be his assets. This required a consideration of the so-called Extended Definition of assets under an (otherwise) standard form WFO and competing authorities as the correct approach. Written by Lauren Godfrey, barrister at Gatehouse Chambers.