Long term radioactive waste storage facility.

A representation is a statement that is not a term of a contract but if turns out to be untrue may still give rise to a remedy, albeit on a restricted basis.

Private Client analysis: The Royal Court of Jersey set aside trust arrangements under Article 47E of the Trusts (Jersey) Law 1984 where flawed professional advice led to the creation of a tax-inefficient structure. The court found that incorrect advice regarding inheritance tax implications and loan arrangements constituted a serious mistake, satisfying the statutory test. The decision reinforces the court’s approach to mistake claims in trust contexts and demonstrates when relief will be granted where tax advice proves materially defective. The judgment also emphasises the critical need for comprehensive tax analysis when establishing offshore trust structures and the importance of considering UK IHT gifts with reservation of benefit rules. Practical implications written by Jacob Ashforth, solicitor at Burges Salmon LLP.

Pensions litigation is often complex and costly, involving numerous parties, raising many and varied issues and ultimately concerning substantial sums of money. The outcome of such litigation has the potential to affect the rights and interests of the members of the scheme involved. However, given that many pension schemes have a sizable membership and the potential for conflict as regards the outcome of litigation between different parts of the membership, it is usually undesirable that all members are made parties. Instead, the use of representative beneficiaries (often shortened to ‘rep bens’) as a procedural and practical tool to streamline pensions litigation is a standard feature of most such claims, although, as we shall see, the term ‘representative beneficiaries’ can be a misnomer, as members can be represented by persons who are not members of the class represented or even beneficiaries. This Practice Note deals with the making of representation orders in pensions litigation. What is a representative party? The representative rule has its origins in the procedure of the Court of Chancery

Private Client analysis: This was an application in a Public Trustee v Cooper claim to join as a defendant an independent solicitor to represent various beneficiaries of the trusts. The application was granted, recognising the trustees’ need to ensure that the beneficiaries were bound by the resulting decision following the Court of Appeal’s decision in Denaxe v Cooper. The application itself was not controversial, but the judgment is of potential interest to lawyers considering any future Supreme Court challenge to Denaxe, since it indicates that the Court of Appeal’s decision in Denaxe was inconsistent with the history of the Public Trustee v Cooper jurisdiction. Written by Francis Ng, barrister at 5 Stone Buildings.

It may be oral or in writing or arise by implication from words or conduct and mere silence is not usually enough. The statement must be one of fact rather than law. The representation can also be a statement of opinion. A claim for damages for misrepresentation aims to put the buyer in the same position it would have been in if the representation had not been made.

DEFINITIONS The following definition needs to be added to Clause 1.1 (Definitions) of Precedent: Facility agreement (term loan): single company borrower—bilateral—with or without security or a guarantee. Mental Incapacity • means in relation to a person: (a) any unsoundness of mind—they are unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain whether the impairment or disturbance is permanent or temporary; (b) any order being made or receiver appointed under the Mental Health Act 1983, the Mental Health Act 2007 or any analogous step or procedure being taken in any other jurisdiction; or (c) any step or procedure being taken in any jurisdiction which would restrict the capacity of the Borrower to enter into [this Agreement OR the Finance Documents to which they are a party] or would require the approval of any third party or authority; CLAUSES The following clauses need to be inserted or amended in

This Practice Note considers the meaning of representations and warranties under general contract law. It looks at their purpose in the context of financial transactions and the common types of representations found within the facility documentation. It also considers when representations are made during the life of a facility and the common negotiating points for the parties when agreeing the documentation. Where appropriate, this Practice Note highlights relevant provisions in Precedent: Facility agreement (term loan): single company borrower—bilateral—with or without security or a guarantee and the Loan Market Association (LMA) investment grade multicurrency term facilities agreement with/without observation shift (the LMA facilities agreement) (available to LMA members on the LMA website). The LMA's user guides (available in the Documents & Guidelines section of its website) contain useful guidance on the representations and warranties in LMA investment grade documentation. Meaning of representations and warranties Most facility agreements will contain a section in which the borrower and other obligors (ie guarantors or security providers (if any)) make a number of statements of fact. These statements are known as

This Practice Note considers representations and warranties in the context of commercial, business-to-business contracts. It covers the meanings of representations and warranties, the distinctions between them, examples of their usage in a commercial context (including pre-contractual and contractual representations, implied and express warranties and collateral warranties), the remedies available, related clauses and contracting-out, implications for third parties and drafting considerations. ‘Representation’ and ‘warranty’ have specific meanings and are distinct from other common terminology used in commercial contracts (such as conditions, indemnities and undertakings), which are not covered in this Practice Note. For more information on such terminology, see: • Practice Note: Contract interpretation—conditions, warranties and intermediate terms • Practice Note: Indemnities in commercial contracts • Undertakings—overview See also Q&A: What is the significance of the words ‘warrants’ and ‘undertakes’ in a contractual obligation? What are representations and warranties and why does the distinction matter? Representations and warranties are commonly included in a wide variety of commercial agreements including those for: • share and asset purchase • supply of goods and services • IT and IP licensing They

What are representations and warranties? A representation is a pre-contractual statement of fact made by a party to a contract to induce another party to enter into the contract. If a representation is incorrect or misleading, it may give rise to a claim for misrepresentation under general law, the remedy for which is recission and/or damages, depending on the type of misrepresentation (see Practice Note: Misrepresentation—what it is and similar claims). A warranty is a term of a contract which, if breached, will give rise to damages but not the right to rescind the contract. In subscription and programme agreements, as in other finance documents, formal statements confirming that a particular state of affairs exists are given the composite label 'representations and warranties'. In theory this may broaden the potential remedies available to the managers or dealers, but in practice they are likely to rely on the specific contractual remedies set out in the agreement—see Condition precedent and Indemnity below. The use and purpose of representations and warranties in debt capital

This Practice Note considers the legal principles that apply in relation to statements made by the parties during recruitment or when an employment contract, executive service agreement or other contractual arrangement is being negotiated, eg regarding qualifications on a curriculum vitae (CV). It examines the meaning and effect of a representation, including fraudulent misrepresentation, negligent misrepresentation and innocent misrepresentation. It also considers warranties, conditions, and innominate terms or intermediate terms. It looks at the distinction between representations and terms particularly with regard to remedies including damages and rescission. Finally, it considers negligent misstatement. Representations Before an employment relationship starts, there are generally discussions between the parties about the nature of the job and the employer's business and the employee's skills and experience. If, as part of these discussions, a party makes a statement of fact to the other party which they rely on in deciding whether to enter into the contract, that is a representation. A representation requires: • a statement of fact or law (or, in appropriate circumstances, of opinion or intention)

What is a misrepresentation? A misrepresentation is an untrue statement of fact or law made by one contractual party to the other and will be actionable where the misrepresentation: • is relied on by the innocent party • induces the innocent party to enter into the contract, and • causes the innocent party to suffer loss The representation may be oral or in writing or arise by implication from words or conduct. Mere silence is not usually enough, although active concealment, half-truths, inaccurate or misleading answers to specific enquiries, or a failure to correct a representation that has become false may be actionable. The representation may consist of a statement of fact or law. Representation may include a statement of law: Pankhania v London Borough of Hackney at [55]–[56]; Representation may include a statement of law: Halsbury's Laws of England [710]. The representation can also be a statement of opinion. For further information, see: Representation may include a statement of law: Halsbury's Laws of England [710] Representations implied from conduct: Halsbury's Laws of England [717] Representations