This Checklist considers possible defences for a defendant facing 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) The following is a list of non-exhaustive defences which a representor may seek to avail themselves

This Practice Note sets out when and how an innocent party can rescind a contract for misrepresentation, why they would wish to do so and when rescission is not permissible. For guidance on when a party may recover damages for a misrepresentation or seek to limit/exclude liability for misrepresentation, see Practice Notes: • Misrepresentation—damages as a remedy • Misrepresentations—excluding and limiting liability for them The remedy of rescission in misrepresentation claims A party who was induced to enter into a contract by a misrepresentation may elect to rescind the contract. If the rescission is challenged, that party may seek the assistance of the court to give effect to the rescission. The effect of rescission, where available, is to put the parties back in the position they were in before the contract was made. It is sometimes referred to as rescission ab initio to distinguish it from termination or cancellation that does not nullify the contract, but brings it to an end. Rescission is available as a remedy whether the misrepresentation was fraudulent, negligent or innocent,

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 and investigating the pre-contract negotiations and discussions that may have taken place many years before. There is a risk that the claimant’s current view of what

This Practice Note considers the requirement for the representor both to have intended to and actually to have induced the representee, by their misrepresentation, to enter into the contract. For details of the other key elements of an actionable misrepresentation, see Practice Notes: • Misrepresentation—what statements will establish a claim? • Misrepresentation—falsity (fraudulent, innocent or negligent misrepresentation) The main elements of inducement in misrepresentation claims The claimant must show that they were induced by the representation to enter into the contract. The main elements of inducement were summarised by the Court of Appeal in Dadourian v Simms: • whether the representee was induced to enter a transaction by a material misrepresentation is a question of fact (Barton v County NatWest) • inducement will be presumed if the misrepresentation was of a nature likely to have played a part in the decision of a reasonable person to enter into a contract (Dadourian) • the misrepresentation need not have been the sole inducement, ie it is sufficient that the misrepresentation was

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

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 Practice Notes: • Misrepresentation—what is inducement? • Misrepresentation—falsity (fraudulent, innocent or negligent misrepresentation) For guidance on the closely related claim for deceit, see Practice Note: The tort of deceit—required elements. Key elements of an actionable misrepresentation The key elements of an actionable misrepresentation are: • the statement relied on by the representee was a statement of fact made to them by or on behalf of the representor • the statement was intended by the representor to induce the representee to enter into the contract • the statement actually induced the representee to enter into the contract • the statement had the character of a representation • the representation was false Additionally, where damages are claimed (in addition or alternatively to rescission), the representee must establish that the misrepresentation caused them to suffer loss. (See Practice Note: Misrepresentation—damages

Where an individual dies leaving no known relatives and a probate practitioner is involved, the first step will be to ascertain whether the deceased left a valid Will. If so, the appointed executors may be able and willing to act, the estate may be left to non-family members and/or there may be adequate long stop provisions such that the estate may pass according to the terms of the Will in the usual way. In relation to the earlier steps, such as arranging the deceased’s funeral, see: Immediate steps following death—overview. This Practice Note considers the position where: • one or more of the beneficiaries named in the deceased’s Will are not known to the personal representatives (PRs) or cannot be found • one or more of the beneficiaries named in the deceased’s Will have predeceased (such that there is a partial or total intestacy) and there are no known relatives, or • the deceased dies without a valid Will (such that there is total intestacy) and there are no known relatives Missing

The disappearance of a person is often harrowing for family and friends but it also creates practical issues, such as how to deal with that person's affairs or their property ownership. For example, if a property is owned solely by the missing person or jointly with others, difficulties can arise in maintaining the property and paying any mortgage or rent. Those trying to protect the missing person’s assets have the choice of trying to trace the missing person, applying for a guardianship order or attempting to prove that they are, or likely to be, dead. Since October 2014, it has been possible to obtain a declaration of presumed death under the Presumption of Death Act 2013 (PDA 2013) once a person has not been known to be alive for a period of at least seven years. However, in the intervening period before a person can be presumed dead, or in circumstances in which the person is believed still to be alive, there may be nobody with authority to deal with their property and financial

PI & Clinical Negligence analysis: The High Court determined preliminary issues regarding clinical negligence. The court held that the defendant GP failed to inform the deceased of a requested chest x-ray and that he would have attended for the x-ray had he been properly informed. Additionally, the court found the deceased was not contributorily negligent in failing to attend a follow-up appointment. Practitioners should note the critical importance of contemporaneous record-keeping; the absence of the x-ray request in the consultation notes was a pivotal factor in the court’s decision. The case reinforces that contributory negligence remains difficult to establish in clinical settings. It is unlikely to succeed unless a defendant demonstrates the patient fully understood the clinical significance of failing to follow advice or attend follow-up appointments. This is particularly relevant when investigations are ordered as an 'afterthought' after a patient has left, without full explanation to the patient. Written by Jennifer Dickinson, barrister at Cobden House Chambers.

Arbitration analysis: This case involved an application to the 9th Commercial Court of Appeal in Moscow, Russian Federation (the ‘Russian Court of Appeal’) by Eurochem, the claimant in the case, to reject the appeal applications of the respondents, MT Russia and Tecnimont SpA, which the respondents filed to appeal the joinder of Tecnimont SpA as the Second Respondent in the case. The Russian Court of Appeal held that the Commercial Procedure Code of Russian Federation does not provide for an appeal of a decision to join a party as a co-respondent, and therefore there are no grounds for commencing appeal proceedings; on that basis, the appeal applications shall be rejected. Written by Irina Tymczyszyn FCIArb, arbitrator and counsel, Tymczyszyn Arbitration.

A mistake of fact, though not generally a mistake of law, can afford a defence to a criminal charge and need not be reasonable unless the offence is one of negligence.

This Practice Note considers the legal concept of mistake in contract law. It examines common mistake, mutual mistake, unilateral mistake, mistake as to identity and mistake as to the document signed (non est factum). It also considers the impact of each of these types of mistake on the contract and the correction of mistakes by rectification or construction. For guidance on dealing with mistakes in the execution of documents, see Practice Note: Deeds—Failure to comply with formalities and other defects and our Execution collection, in particular, The Basics—Q&As—Mistakes in executing documents. For more guidance where parties choose to correct a mistake by agreeing an amendment to the operative parts of a contract, see Practice Note: Contract variation. What is a mistake? A mistake is an erroneous belief held by one or both parties to a contract at the time of its formation. A mistake may arise as to the: • subject matter or terms of the contract • identity of the other party • nature of the transaction Mistake should not be confused with a misrepresentation