Misrepresentation and loss of remedies

SALT v STRATSTONE SPECIALIST (CA) [2015]

The Court of Appeal (CA) has clarified that a Court can only award compensation for an ‘innocent misrepresentation’ (under the Misrepresentation Act 1967 (MA)) as an alternative remedy to having the contract set aside where the right to have the contract set aside has not been lost.

Background:

A misrepresentation is a false statement made by one party to another which encourages the other party to enter into a contract and upon which they relied and which caused them to suffer loss.

Types

Where a person makes a false statement that could be treated as a misrepresentation, it could be one of three types:

Remedies

The remedies available depend upon which type of misrepresentation is in issue.

As a remedy for all types of misrepresentation, the Court has a discretion to set aside or make the contract void (referred to as the remedy of ‘rescission of the contract’ or as having the ‘right to rescind the contract’). The aim of rescission is to put the parties back in their original position, as though the contract had never been entered into in the first place. In relation to a sale of goods, this would mean the buyer returning the goods and receiving a refund of the price paid. This is quite different from the basis upon which damages are awarded for breach of contract, which is to put the injured party in the position it would have been in had the contract been performed in accordance with its terms.

For fraudulent misrepresentations, a Court can award rescission and compensation for the loss suffered (damages) (under section 2(1) MA).

Where a claim relates to a negligent or innocent misrepresentation, the Court has discretion to order rescission or to award damages in lieu of rescission (ie instead), provided the right to rescind has not been lost (under section 2(2) MA).

Facts:

CC Decision:

HC Decision:

CA Decision:

Points to note:

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