As of 6 April 2025, the Digital Markets, Competition and Consumers Act 2024 (DMCCA 2024) revoked and replaced the consumer protection regime under the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR 2008), SI 2008/1277. This Practice Note covers the offence of engaging in a commercial practice which involves a misleading omission and the offence of omitting material information from an invitation to purchase under DMCCA 2024. Although the provisions for these offences under DMCCA 2024 largely mirror those under CPUTR 2008, SI 2008/1277 the existing prohibition against the omission of material information from an invitation to purchase has been expanded so that it is now a category of misleading commercial practice all of its own. As well as combatting drip pricing, the offence has also been broadened so that the omission of material information from an invitation to purchase is now unfair irrespective of whether it is likely to impact a consumer’s transactional decision (see further below: Offence of omitting material information from an invitation to purchase). For

Elements of the offence of misleading statements in relation to benchmarks The Financial Services Act 2012 (FSA 2012) creates an offence in respect of misleading statements and impressions in relation to benchmarks. Under FSA 2012, s 91(1) a person who makes to another person a false or misleading statement commits an offence if: • they make the statement in the course of arrangements for the setting of a relevant benchmark • they intend that the statement should be used by another for the purposes of the setting of a relevant benchmark, and • they know that the statement is false or misleading or are reckless as to whether it is In addition, under FSA 2012, s 91(2), a person who does any act or engages in any course of conduct which creates a false or misleading impression as to the price or value of any investment or as to the interest rate appropriate to any transaction commits an offence if: • they intend to create the impression • the impression may affect the setting

Offences relating to financial services The Financial Services Act 2012 (FSA 2012) creates three offences relating to market manipulation: • making false or misleading statements or dishonestly concealing material facts under FSA 2012, s 89 • creating false or misleading impressions under FSA 2012, s 90, and • making false or misleading statements etc in relation to benchmarks under FSA 2012, s 91 See also Practice Notes: Misleading statements etc in relation to benchmarks and Misleading impressions under Financial Services Act 2012. For information on the previous regime for market manipulation under section 397 of the Financial Services and Markets Act 2000 (FSMA 2000), which was repealed, see Practice Note: Misleading the market and market manipulation under s 397 FSMA 2000 [Archived]. Misleading statements—elements of the offence (the criminal act) A person commits a misleading statement offence if they make a statement or conceals the facts with the intention of inducing, or is reckless as to whether making it or concealing them may induce, another person (whether

Part 7 of the Financial Services Act 2012 The Financial Services Act 2012 (FSA 2012) introduced new criminal offences relating to financial services of: • making false or misleading statements • creating false or misleading impressions. • making false or misleading statements or creating a false or misleading impression in relation to specified benchmarks The Financial Conduct Authority (FCA) has the power under section 401 of the Financial Services and Markets Act 2000 (FSMA 2000) to prosecute the offences. Making false or misleading statements (FSA 2012, s 89) Section 89(1) of the FSA 2012 states that it is a criminal offence for a person to either: • make a statement which he knows to be false or misleading in a material respect; or • make a statement which is false or misleading in a material respect, being reckless as to whether it is; or • dishonestly conceal any material facts whether in connection with a statement made by that person or otherwise For the purposes of FSA 2012, s 89(1),

ARCHIVED: This archived Practice Note is not being maintained. In addition to the regime governing civil/regulatory market abuse, the Financial Services and Markets Act 2000 (FSMA 2000) included two criminal offences in relation to making misleading statements and engaging in misleading practices under FSMA 2000, s 397. These offences have now been revoked by s 95 of the Financial Services Act 2012 (FSA 2012). However, FSMA 2000, s 397 can still be used for offences that predate the FSA 2012 enacted on 1 April 2013; such behaviour which took place after that date will be prosecuted under the offences contained under FSA 2012, ss 89–91. For an overview of the civil/regulatory regime governing market abuse before the implementation of Market Abuse Regulation (EU) 596/2014, see Practice Note: Market Abuse—pre Market Abuse Regulation. For further information on the Market Abuse Regulation, see Practice Notes: Market Abuse Regulation (MAR)—essentials [Archived], Market Abuse Regulation (MAR)—timeline, UK Market Abuse Regulation (UK MAR)—one minute guide and News Analysis: Top 10 key changes

A misrepresentation is a pre-contractual false statement of fact or law made by one party to a contract (or his agent) to the other that induced that party to enter into the contract.

Dispute Resolution analysis: in claims arising out of sales of fixed interest rate business loans prior to 2010, the Judge Zacaroli considered whether: (i) Clydesdale was entitled to charge break costs upon early repayment of the loans; and (ii) misrepresentations were made about the amount of profit being made on the loans. All of the claims were dismissed, though permission to appeal has already been granted on a contractual construction aspect. The reasoning in respect of the misrepresentation claim is particularly surprising, and may give rise to further grounds for appeal. Four SMEs brought claims; over 900 similar claimants’ claims were stayed pending determination. Written by Simon Oakes, barrister at Quadrant Chambers.

Dispute Resolution analysis: Pentagon Food Group Ltd v B Cadman Ltd centred on the interpretation and alleged breach of a settlement agreement concluded between the parties in relation to a previous set of proceedings. In this judgment, which serves as a helpful reference for practitioners on several legal issues, the High Court considered whether misrepresentations contained in a party’s pleadings may be actionable, as well as the circumstances in which representations, either express or implied, made during the course of a mediation could form the basis of a claim in misrepresentation, in the absence of a finding of unambiguous impropriety. The court also considered the test for implication of terms into the settlement agreement, and the law applicable to the construction of express contractual terms, ultimately finding the defendant to be liable for breach of an express and/or implied term of the settlement agreement, and in misrepresentation for statements made during the course of the mediation which led to the conclusion thereof. Written by Emily Lodge, associate at Quinn Emanuel Urquhart & Sullivan UK LLP.

This Practice Note looks at misrepresentation, misstatement and non-disclosure in property transactions. It covers a seller’s liability for replies given to enquiries before contract, a buyer’s possible remedies for non-disclosure, misrepresentation and misstatement and contractual terms which may protect the seller in the event of a claim. What is misrepresentation? A misrepresentation is a false statement of fact made by one party to another, which is not a term of the contract but induces the other party to enter into the contract. The misrepresentation must have been material and must have been relied on. If a seller makes a false statement in replies to enquiries (or elsewhere) which the buyer relies on when deciding whether or not to enter into the contract and the buyer suffers loss as a result of entering into the contract, the seller will be liable for misrepresentation. It is not necessary to show the misrepresentation was the sole point relied upon when the buyer entered into the contract, as liability can arise even if the misrepresented information

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 remedy For guidance on the related issues of: • entire agreement clauses and their use in limiting or excluding liability for misrepresentation—see Practice Note: Contract interpretation—entire agreement clauses • 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)

This Practice Note considers when damages are available as a remedy for a misrepresentation claim with reference to the Misrepresentation Act 1967 (MA 1967). For consideration of when the courts will rescind a contract for misrepresentation and when parties can validly exclude or limit liability for misrepresentation, see Practice Notes: • Misrepresentation—rescission as a remedy • Misrepresentations—excluding and limiting liability for them When can you claim damages as a remedy for misrepresentation? MA 1967 provides a statutory basis for the recovery of damages in cases of misrepresentation under MA 1967, s 2 in addition to the common law action for damages for fraudulent misrepresentation or the closely related tort of deceit. Thus the position is that if the representee suffered loss as a result of having been induced to enter into the contract by the misrepresentation, they may have a claim for damages in the following circumstances: • where the misrepresentation was fraudulent (already available at common law) • where the misrepresentation was not fraudulent, but the representor is unable to show that they had reasonable

A claim for misrepresentation requires that the statement made must have been false. This is the ‘falsity’ requirement. Having established the falsity of a statement, however, the next question is whether that false statement was made fraudulently or innocently. If the false statement was made innocently, then there is yet a further question to consider, namely whether there was any negligence involved in the innocent making of the false statement. This Practice Note considers the requirement for falsity in a misrepresentation claim and discusses the distinctions and reasons for pleading fraudulent misrepresentation rather than negligent or innocent misrepresentation, with reference to the Misrepresentation Act 1967 (MA 1967). It also sets out a number of pointers for assessing a misrepresentation claim. For guidance generally on misrepresentation claims, including what they are (and are not) and the key constituent elements for bringing a claim for actionable misrepresentation, see Practice Note: Misrepresentation—what it is and similar claims. For related Practice Notes on remedies of damages and rescission in misrepresentation claims, see Practice Notes: