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View the related checklists about Misrepresentation

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,...

A tenant entered into a 12-month AST and the landlord has served a valid section 21 notice terminating the tenancy on the expiry of the term. The tenant entered into the tenancy having been assured by the landlord that they could stay for longer than one year. Does the client have any cause of action or remedy based on estoppel or misrepresentation?

A tenant entered into a 12-month AST and the landlord has served a valid section 21 notice terminating the tenancy on the expiry of the term. The tenant entered into the tenancy having been assured by the landlord that they could stay for longer than one year. Does the client have any cause of action or remedy based on estoppel or misrepresentation? Misrepresentation Misrepresentation is a statement of a fact which is untrue. In order to establish a misrepresentation you must be able to point to the represented words either on the page or electronically, or point to them being said by a certain person, on a certain date. There must be an actual representation or statement. The representation must be a fact, as distinct from a statement of opinion, a statement of intention or a commendatory statement. The representation must be false. The general rule is that, in determining whether there has been an express representation, and to what effect, the court has to consider what a...

View the related News about Misrepresentation

Tyson foods insurer can sue over fire payout in England

Law360, London: Tyson Foods' captive insurer can pursue litigation against a reinsurer in England for payouts following a fire at one of the food giant's Alabama plants, after a London court found the companies had chosen the English jurisdiction to take priority over arbitration in New York.

The importance of a clear and precise trade mark description—invalidity actions against ‘three stripes’ trade marks (Thom Browne v Adidas)

IP analysis: Thom Browne brought an action to invalidate 16 UK trade mark registrations owned by Adidas, all of which comprised their ’three stripes’ design. Adidas counterclaimed that Thom Browne's four stripe pattern infringed their registrations and included claims to passing off. The grounds of invalidity included that Adidas' registrations were unclear, imprecise and inconsistent and so did not constitute ‘signs’ under section 1(1) of the Trade Marks Act 1994 (TMA 1994), as well as being non-distinctive trade marks and subject to revocation for non-use. The case is a strong reminder of the importance of ensuring a trade mark application contains a clear and precise description, even if that means the protection afforded by the trade mark must be narrowly construed. Written by Helene Whelbourn, legal director at Lee & Thompson LLP.