#10089 - Final Exam Notes - BPC Opinion

FINAL OPINION EXAM NOTES

HEADER

IN THE MATTER OF:

XYZ (capitals)

and

ABC

OPINION

INTRODUCTION

1. C: I am asked to advise _________ (‘Mr X’) as to whether he/she/it has a claim against _________ (‘Mr Y’) for misrepresentation, including fraudulent misrepresentation and misrepresentation under section 2(1) of the Misrepresentation Act 1967 (‘Misrepresentation under the Act’). In particular I am asked to advise what the likely remedies (including damages) would be at trial, in the event that C has a valid claim.

2. C: I am asked to advise _________ (‘Mr X’) as to whether he/she/it has a claim against _________ (‘Mr Y’) for damages for fraudulent misrepresentation and/or misrepresentation under section 2(1) of the Misrepresentation Act 1967. In particular, I am asked to advise …

3. D: I am asked to advise ______________ (‘Mr X’) as to whether ____________ (‘Mr Y’) has a valid claim against it for misrepresentation, including fraudulent misrepresentation and misrepresentation under section 2(1) of the Misrepresentation Act 1967. In particular I am asked to advise …

4. State value of the claim if known

5. This opinion is based on the following documents:

1. Document X dated 00/00/00 (‘Doc’); and

FACTUAL BACKGROUND

1. Start defining terms ie. (‘the contract’)

2. Numbers

3. Omit irrelevancies

4. Facts needed to establish claim. Who alleges it where disputed.

WAS THERE A MISREPRESENTATION?

1. C & D: To determine whether C has a valid claim against D, it must be established whether Mr Y __action/conduct__________________ was an actionable misrepresentation. For this conduct to constitute a misrepresentation C would need to demonstrate to a court that this was: a) a statement of fact; b) that was false c) made by D to C; and d) that this induced C to enter into the Contract. These principles apply to both fraudulent misrepresenation and Misrepresentation under the Act (Chitty: 31^st Edn. Vol 1, para 6-074). I will explore each of these elements in turn.

Statement of Fact

2. A statement, for the purposes of a misrepresentation claim, is not to be interpreted too literally. Indeed, D’s ______action/conduct____________ could be regarded as a representation, as the courts have held that conduct by the parties can qualify as being statement (Curtis v Chemical Cleaning and Dyeing Co. Ltd [1951] 1 KB 805 (CA)). C would argue that D’s conduct carried with it an implied statement as to the fact that (D did not know of any matter which might falisify)_____________. Similarly, in Spice Girls Ltd v Aprilia World Service BV [2002] EWCA Civ 15 the Court of Appeal held that a pop group had made an implied misrepresentation when they continued with arrangements to publicise the defendant’s products despite knowing that one member of the group was intending to leave the group shortly, which would prevent the contract being carried out and the defendants deriving any benefit from the arrangement. The implied misrepresentation being that the group did not know and had no reasonable grounds to believe that any member of the group had the intention to leave before the end of the agreement

3. A court would determine whether D’s conduct carried the implied statement indicated above by considering what a reasonable person would have inferred was being implicitly represented by this conduct, in light of the circumstances pertaining at the time (Chitty: 31st Ed, Vol. 1, para 6-014).

4. The circumstances relevant to the context … EXPLORE EVIDENCE

The Statement Was False

5. C: D may argue that at the time ___conduct____________ there was no reason to believe that the implied statement conveyed by this conduct was false. However, this is not a valid defence for misrepresentation. Indeed, in Spice Girls it was stated that ‘a representation once made is likely to have continuing effect … until the transaction is completed’ (at para 51). Whether the implied statement communicated by D’s conduct had continuing effect would again need to be determined in light of the circumstances (FoodCo UK LLP and others v Henry Boot Developments Ltd [2010] EWHC 358 (Ch)). In my opinion a court is likely to find that it did have continuing effect (because/for the following reasons):

1. evidence

6. Therefore, in light of this view, even if the implied statement made by D’s conduct was true at the time it was made, if it was false at the time the Contract was entered into, it would constitute a false statement. Moreover, D would be under a duty to inform C that the implied statement was no longer true when they learnt of this (With v O’Flanagan [1936] 1 Ch 575 (CA)). Similarly, this principle is also recognised by section 2(1) of the Act, as it states that D must have believed ‘up to the time the contract was made’ that the facts represented were true.

7. The points which indicate that D’s statement was false at the time of the Contract are … evidence

8. LAW: A statement will be treated as true if it is substantially correct and the difference would not have induced a reasonable person to enter the contract (Chitty: 31^st edn, Vol 1 para 6-023).

9. Furthermore, there is evidence to indicate that D knew this statement was false at the time of contract in that …

10. Finally, D cannot say they discharged their duty to C by informing C that this was false as there is seemingly no evidence of this. C only learnt that the statement was false through …

11. Therefore, in light of these points, I think it is likely that a court would convinced that D made a false statement of fact to C by _____________: namely _____________

Made By D to C

12. C must show that the implied statement was made to them. This requirement is easily satisfied in that ….

This False Statement of Fact Made to C Induced C to Enter Into the Contract

13. Finally, to establish a misrepresentation, C must show that D’s false statement of fact induced him into entering the Contract. Thus, the following four conditions would need to be satisfied:

1. D’s misrepresentation must have been material;

2. It must have been known to C;

3. It must have been intended to have been acted upon;

4. It must have been relied on.

Dealing with each of these points in turn:

1. Material

14. To satisfy this element C would need to show that a reasonable man would have been influenced by D’s misrepresentation into entering into the contract (Smith v Chadwick (1884) 9 App Cas, 187, 196). This test would likely be satisfied in that if D’s misrepresentation were true, obviously the Contract would be an attractive one in that ____________

b) Known to C (Horsfall v Thomas (1862) 1 H & C 90)

15. Again, this element is easily satisfied in that C witnessed D’s _____conduct_____ and thus the implied statement of fact would be known to C.

c) Intention

16. There remains some uncertainty in the law as to whether this element is pertinent to both fraudulent misrepresentation and Misrepresentation under the Act (Chitty: 31^st Edn, Vol 1, para 6-033). However, for the present purposes, any such uncertainty is unlikely to be an issue relevant to this matter. To satisfy this test C must simply show that D intended their false statement of fact to be acted upon, or at least that D ought to have realized that the representee might do so (Peek v Gurney (1873) LR 6 HL 377). This is likely to be satisfied in that, the false statement conveyed by D’s ___conduct_____ would obviously make any reasonable person in C’s position more confident in the pecuniary opportunities offered by the Contract. Therefore, I do not envisage any difficulty in establishing the first three elements of inducement. Where I can see D disputing this matter, if it proceeds to trial, is with the following element.

d) Reliance

17. D are likely to refute that C relied on D’s false statement of fact as an inducement to enter into the contract. D may argue that C had actual knowledge of the truth, which would be a complete defence to misrepresentation. The burden would be on D to establish this (Chitty: 31^st edn, Vol 1 para 6-036). One likely point D would raise is that if ___________ was so important to C so as to induce them into entering the contract, considering their business experience, why would they not think to consider including this as a term in the contract?

18. Other arguments relevant to this are …

19. Actually acted upon: The representor can attempt to prove that the representee did not actually rely on the misrepresentation in deciding to enter the contract, but was persuaded by some other factor (Peekay Intermark Ltd v Australia and New Zealand Banking Group Ltd [2006] EWCA Civ 386, [2006] 2 Lloyd’s Rep 511)

Where the misrepresentation is material and fraudulent, there is a presumption of an intention that the statement should be acted upon and the fact of inducement (Dadourian Group International Inc. v Simms (Damages) [2009] EWCA Civ 169, [2009] 1 Lloyd’s Rep 601).

20. Materially Contributed: The statement does not have to be the only reason why the party entered into the contract (Edgington v Fitzmaurice [1885] 24 ChD 459).

21. Verification: Where the representee tests the truth of the statement by making their own investigations, then the representee may be held to have relied upon their own judgement and not the misrepresentaion ie. where they’ve relied entirely on their own investigations (Attwood v Small (1836) 6 CI & F 232).

However, this does not apply with instances of fraudulent statements (S. Pearson & Son Ltd v Dublin Corporation [1907] AC 351).

Moreover, a representee may still claim that a false statement induced him to enter the contract even though he was given the chance to verify the facts for himself (Redgrave v Hunt (1881)...