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Misrepresentation—tough questions for assessing a misrepresentation claim—checklist

Misrepresentation—tough questions for assessing a misrepresentation claim—checklist This Checklist considers the questions to discuss with a prospective claimant bringing a claim for misrepresentation. For guidance on what a claim for misrepresentation is and the key elements required to establish such a claim, see Practice Notes: • Misrepresentation—what it is and similar claims • Misrepresentation—what statements will establish a claim? • Misrepresentation—what is inducement? • Misrepresentation—falsity (fraudulent, innocent or negligent misrepresentation) Assessing the merits of a claim for misrepresentation involves a detailed analysis of the facts, investigating the pre-contract negotiations and discussions that may have taken place many years before. There is a risk that the claimant’s view now of what was said then, and how important it was, may be coloured by their experience of what has happened since. The following is a list of the sort of questions that will need to be asked of the claimant (the representee) at an early stage to help form a view of the strength (or weakness) of any claim: • what was...

Drafting terms for the sale of goods—business to business—checklist

Drafting terms for the sale of goods—business to business—checklist This Checklist is for drafting terms and conditions for the sale of goods. It sets out the key considerations when drafting business-to-business (B2B) standard form terms and conditions or a contract for the sale of goods. It considers the legal, regulatory and practical issues around the sale and supply of goods and is drafted with a seller/supplier bias. For general guidance on contracts for the sale of goods, see Practice Notes: Contracts for the sale and supply of goods—business to business and Implied terms in contracts for goods and services. For general guidance on key terms in commercial contracts more broadly, see Practice Note: Key terms and conditions in commercial contracts. General considerations Speak to departmental representatives within the business to establish any concerns they have and any customer feedback that should be addressed in the terms. Understand how the goods will be provided and any back-end processes, eg for delivery or returns, which need to be reflected in the terms....

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Passing off—flowchart

Passing off—flowchart Passing off action Passing off is a common law action that is used to protect unregistered trade mark rights in the UK. The stages of the Flowchart cover establishing a claim for passing off covering: • the three essential elements of goodwill, misrepresentation, and damage • sending a letter of claim, issuing proceedings and applying for an injunction • commencing proceedings in the general Intellectual Property List or the Intellectual Property Enterprise Court sub-list in the Business and Property Court, in the Chancery Division at the High Court • case management including allocation, the case management conference and directions • disclosure and evidence including inspection, additional disclosure and survey evidence • trial preparation and post-trial activities such as election between damages or an account of profits • applications to appeal Stage 1—preparing to bring a claim and pre-action matters Claim preparation and pre-action matters—Practice Notes • Passing off—goodwill, misrepresentation and damage • Trade mark and passing off disputes—a practical guide • How to run an IP dispute...

View the related practice notes about Misrepresentation

Misrepresentation—what it is and similar claims

This Practice Note describes what an actionable misrepresentation is and the key ingredients required for bringing a claim for misrepresentation, the role of the Misrepresentation Act 1967 (MA 1967) and provides a comparison with other similar claims. For related guidance on the key elements required to establish a claim for misrepresentation, see Practice Notes:•Misrepresentation—what statements will establish a claim?•Misrepresentation—what is inducement?•Misrepresentation—falsity (fraudulent, innocent or negligent misrepresentation)For a summary of the practical considerations in misrepresentation claims contrasted with negligent misstatement claims, see Practice Note: Claiming negligent misrepresentation or negligent misstatement—practical considerations.What is a claim for misrepresentation?A claim for misrepresentation arises where one party to a contract (the representor) made an untrue statement that induced the other party (the representee) to enter into the contract.A claim may be made where the representation is made by one contracting party's agent or even, in limited circumstances, where it is made by a third party, see Practice Note: Who can be a party to a claim for misrepresentation?Where there has been a misrepresentation, the representee...

Misrepresentations—excluding and limiting liability for them

This Practice Note sets out when and how parties can seek to limit or exclude liability for misrepresentations by reference to section 3 of the Misrepresentation Act 1967 (MA 1967) and the reasonableness test under section 11 of the Unfair Contract Terms Act 1977 (UCTA 1977).Note: as from 1 October 2015, UCTA 1977 applies only in respect of business-to-business contracts; for consumer contracts, see instead sections 61–76 of the Consumer Rights Act 2015 (CRA 2015).For guidance on when a party may rescind a contract or recover damages for a misrepresentation, see Practice Notes:•Misrepresentation—damages as a remedy•Misrepresentation—rescission as a remedyFor guidance on entire agreement clauses and their use in limiting or excluding liability for misrepresentation, see Practice Note: Contract interpretation—entire agreement clauses.For guidance on non-reliance clauses to exclude or limit liability for misrepresentation and the concept of ‘contractual estoppel’, see Practice Note: Contractual estoppel.What are exclusion clauses for misrepresentation?It is not uncommon (in substantial and complex contracts it is usual) for the parties to agree provisions in their contract that seek...

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Short-form facility agreement (term loan): single company borrower—bilateral—unsecured

Short-form facility agreement (term loan): single company borrower—bilateral—unsecured Facility agreement This Agreement is made on [date] Parties 1 [insert name of Borrower], a company incorporated in England and Wales with registered number [insert company number] whose registered office is at [insert address] (the Borrower); and 2 [insert name of Lender], of [insert address] (the Lender). It is agreed as follows: 1 Definitions and interpretation 1.1 In this Agreement, unless otherwise provided: Business Day • means a day, other than a Saturday, Sunday or public holiday, on which banks are open for business in London; Commitment • means £[•] ([•] Sterling) minus any amount reduced or cancelled in accordance with this Agreement; Commitment Period • means the period commencing on the date of this Agreement to and including [•]; Default • means an event that with the giving of notice, lapse of time or other applicable condition would be an Event of Default under Clause 16; Drawdown • means [the OR a] utilisation of the...

Music publishing agreement—pro-publisher

Music publishing agreement—pro-publisher This Agreement is made on [date] Parties 1 [Insert name of Publisher] a company incorporated in [England] with registered number [company number], whose registered office is at [address] (Publisher); and 2 [Insert name of Writer] of [insert address] (Writer). Background (A) The Writer is a composer of musical works and/or an author of lyrics of literary works; (B) The Publisher is engaged in the business of music publishing throughout the Territory and has, inter alia, facilities for the administration and exploitation of musical works; and (C) The Publisher wishes to acquire and the Writer wishes to grant to the Publisher the exclusive right to the Writer’s share of the Compositions, subject to the terms of this Agreement. It is agreed as follows: 1 Definitions and Interpretation 1.1 In this Agreement: Accounting Period • means each six monthly period ending on 30 June and 31 December; Advance • means all monies paid to the Writer by the Publisher other than royalties. Such...

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Which limitation period applies if two causes of action are being brought together which have different limitations?

Which limitation period applies if two causes of action are being brought together which have different limitations? Assuming that each cause of action has a distinct statutory limitation period, it would be possible for one cause of action to be time-barred, and therefore fail (or be struck out), whilst other causes of action might survive and ultimately be successful upon disposal of the claim. For example, in Brent London Borough Council v Davies, a complex series of different causes of action were brought against a number of defendants. The Court considered different limitation periods both with respect to the different causes of action and, within the different causes of action, to different elements of loss. However, the position is complicated where the causes of action include equitable claims which do not have an express statutory limitation period. For example, the tort of deceit has a six-year limitation period under section 2 of the Limitation Act 1980 (LA 1980). A claim in equity to rescind a contract for fraudulent misrepresentation,...

What are IP rights?

What are IP rights? Basic concept Most people are familiar enough with the idea that owning tangible property, such as a car or some land, carries with it some rights, such as not to have it stolen or damaged. So that people are incentivised to create things or new ways of doing something, the law provides rights to creators. These rights are to property, generated by someone's creativity, and they are similar to rights in property such as land—they can be sold, rented out or even mortgaged, and they cannot be trespassed on without the owner's consent. The owner has a right to keep other people away from exploiting this intellectual property (IP), for example stopping them selling the products containing the ideas protected by the IP. There are limits to that right to keep people away, because the intention is that the owner's exclusive rights should not extend so far that competition and free markets are stifled. Creative output could be viewed as a spectrum of activities,...

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Malaysia (stay of court proceedings in favour of arbitration) Court of Appeal provides guidance on approach to be taken when considering a stay application (Asia Pacific Higher Learning Sdn Bhd v Stamford College (Malacca) Sdn Bhd)

Arbitration analysis: In dismissing an application to stay court proceedings pending a reference to arbitration, the Malaysian Court of Appeal (“Court of Appeal”) clarified the approach that ought to be taken by the courts when considering a stay application under Section 10 of the Malaysian Arbitration Act. When there is plainly an arbitration agreement but an assertion is made that the arbitration agreement was invalidated because it is null and void, inoperative or incapable of being performed, the courts should apply the ‘just and convenient’ approach, ie—in a situation where both the court and the arbitral tribunal have jurisdiction and power to investigate and conclude on the validity of an arbitration agreement, the appropriate forum to do so must be the, on balance, more just and convenient forum, having regard to the facts and circumstances in issue. This contrasts with the situation where the existence of the arbitration agreement itself is in issue. In such circumstances, the courts should adopt the ‘prima facie approach’ which is to consider whether there...

Does YouTube Shorts infringe registrations of SHORTS marks and are those registrations valid? (Shorts International Ltd v Google Llc)

IP analysis: The proceedings relate to Google’s YouTube Shorts service. Shorts International Ltd (SIL) claimed that Google’s use of certain signs in relation to its YouTube Shorts service amounted to infringement of SIL’s registered trade marks and passing off. Google claimed that there was no infringement or passing off and that SIL’s registered trade marks were invalid or should be revoked for non-use. It was held that, at the various relevant dates, most of SIL’s trade marks were valid, though the word mark ‘SHORTSTV’ was invalid for most goods and services, and that the other marks should be revoked for non-use for some goods and services. However, all SIL’s trade marks had low inherent distinctive character, and SIL’s use of its trade marks in the UK had not been extensive enough to claim enhanced distinctiveness. None of Google’s uses of signs including the word ‘shorts’ would give rise to a likelihood of confusion as to origin. There were significant similarities between the signs used by Google which included the word...