Misrepresentation—what statements will establish a claim?
Produced in partnership with Charles Spragge of Druces
Misrepresentation—what statements will establish a claim?

The following Dispute Resolution practice note Produced in partnership with Charles Spragge of Druces provides comprehensive and up to date legal information covering:

  • Misrepresentation—what statements will establish a claim?
  • Key elements of an actionable misrepresentation
  • Misrepresentation—statement of fact
  • Misrepresentation—express representations
  • Misrepresentation—implied representations
  • Misrepresentation—continuing representations and assumption of responsibility
  • Statements of intention, opinion and promises—are they actionable representations?
  • Can silence alone found a claim for misrepresentation?
  • Obligations of disclosure—insurance contracts
  • Statement must have been material
  • More...

This Practice Note considers the requirement for there to be a false statement of fact for an actionable misrepresentation. For details of the other key ingredients for a misrepresentation claim, see the following Practice Notes:

  1. Misrepresentation—what is inducement?

  2. Misrepresentation—falsity (fraudulent, innocent or negligent misrepresentation)

Key elements of an actionable misrepresentation

The key elements of an actionable misrepresentation are:

  1. the statement relied on by the representee was a statement of fact made to them by or on behalf of the representor

  2. the statement was intended by the representor to induce the representee to enter into the contract

  3. the statement actually induced the representee to enter into the contract

  4. the statement had the character of a representation

  5. the representation was false

Additionally, where damages are claimed (in addition or alternatively to rescission), the representee must establish that misrepresentation caused them to suffer loss. (See Practice Note: Misrepresentation—damages as a remedy).

For a detailed summary of the different aspects of when an actionable representation has been made, see Jacobs J at paras [132]–[143] in Vald. Nielsen v Baldorino. See also News Analysis: Court confirms settled principles on fraud and conspiracy claims (Vald. Nielsen Holding A/S and another company v Baldorino and others).

Misrepresentation—statement of fact

For a pre-contractual statement to be an actionable representation it must have been a statement of fact. The statement:

  1. may have been express or implied, and

  2. may have

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