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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Sears & Anor v Minco Plc & Ors [2016] EWHC 433 (Ch) (04 March 2016) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2016/433.html Cite as: [2016] EWHC 433 (Ch) |
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CHANCERY DIVISION
7 Rolls Buildings London EC4A 1NL |
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B e f o r e :
sitting as a Judge of the High Court
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(1) John Bennington Sears (2) Sippdeal Trustees Limited |
Claimants |
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- and - |
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(1) Minco Plc (2) Terence McKillen (3) Danesh Varma |
Defendants |
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Mr Christopher Lundie (instructed by Marriott Harrison LLP) for the Defendants
Hearing dates: 19-22, 25-27 and 29 January 2016
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Crown Copyright ©
His Honour Judge Hodge QC:
"200. Turning to the issues of materiality and inducement, there is a material misrepresentation where the false part of a statement is objectively likely to have constituted an inducement to the recipient to enter the contract, not in the sense of being the sole or the predominant cause but merely one of the inducing causes.
201. Once the misstatement is shown to have been material, then there is 'a fair inference of fact' that the recipient was induced by the statement: see Chitty on Contracts (29th Ed) at Para 6-035 and the numerous cases cited in note 162.
202. In cases of fraudulent misrepresentation a more rigorous rule is applied, sometimes described as being by way of deterrence: see Chitty (op. cit.) at para 6-034. It is not enough for the representor to show that the representee would, even if the representation had not been made, still have entered the contract. It is sufficient for the representee to show that the misrepresentation 'was actively present to his mind' (per Bowen LJ in Edgington v Fitzmaurice (1885) 29 Ch D 459 at 483)."
Ms den Besten submits that as regards deceit, the questions are whether the minimum dilution representation was actively present in Mr Sears's mind? Whether it was part of the thought process which caused him to purchase or retain the shares in Minco? The claimants say that it was, and that that is initially apparent from the chronology by which he purchased those shares.
"314. 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…
315. 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."
It was the claimants' case that Mr Sears was "the man in the street", and that the non-reliance clauses relied upon by the defendants were in substance an attempt to exclude liability for misrepresentations that had in fact been made, and so to 'rewrite history'. As such, they were plainly open to scrutiny under section 3 of the 1967 Act.
"For the claimant Mr Coleman submits that these representations are not contractual warranties and therefore contractual estoppel does not apply. Further Mr Coleman submits that the clauses are not 'basis clauses' but clauses which exclude liability and submits that the representations seek to rewrite history and part company with reality. The claimant relies on the authority of Raffeisen Zentral Bank v Royal Bank of Scotland [2011] 1 Lloyd's Rep 123 at 313 – 315 that to the extent the clause seeks to change the character of the parties' previous dealings, it will be treated as an exclusion clause. To the extent that the effect of such clauses is to exclude liability for negligence they are subject to the test of reasonableness in section 2(2) of the Unfair Contract Terms Act 1977."
"105. It seems to me that the passages on which the claimant seeks to rely have to be read as a whole and in my view the test is not whether the clause attempts to rewrite history or parts company with reality. The first step is to determine as a matter of construction whether the terms defined the basis upon which the parties were transacting business or whether they were clauses inserted as a means of evading liability…
111. In my view recent authorities have been very clear that parties may agree the basis on which they are entering into a relationship. The effect of such a clause is that the party is contractually estopped from denying to the contrary. This is so even where for example parties agree that one party has not made any pre-contract representations about a particular matter and both parties knew that such representations have in fact been made… Thus I reject the submission that the test is whether the clause 'rewrites history'. Nor does anything turn, in my view, on the fact that the confirmation was not received back for some months after the deal was entered into. It was signed by the claimant and returned to Barclays and this is the basis on which the parties agreed to enter into the relationship.
112. It follows from this that no question of reasonableness arises and as a matter of construction of the relevant provisions, even if I had concluded that recommendations or advice had been given, the claimant is contractually estopped from asserting that Barclays gave advice or a recommendation to enter into the swap transaction. The essence of the claim is that the claimant alleges that Barclays assumed an advisory relationship through its information and explanations. This is the specific matter which is addressed in paragraph (a) 'non-reliance' in the confirmation and the claimant is therefore estopped from asserting this."