Misrepresentation claim struck out on basis that entire agreement statement excluded liability

The High Court has held that an entire agreement clause in a commercial contract had the effect of excluding liability for misrepresentation under section 2(1) of the Misrepresentation Act 1967: NF Football Investments Limited v NFFC Group Holdings Limited [2018] EWHC 1346 (Ch).

This contrasts with the orthodox view that the effect of an entire agreement statement is merely to avoid pre-contractual representations becoming terms of the contract, and that such a statement will not, in itself, exclude liability for misrepresentation (as noted for example in our contract disputes practical guide on pre-contractual statements).

The decision notes that clauses which effectively exclude liability for misrepresentation will ordinarily be expressed using well-established formulations, such as non-reliance wording (see our post earlier on a recent Court of Appeal decision which considered a non-reliance clause) or an express statement that liability is excluded. However, it emphasises that an entire agreement clause (like any other) must be construed in its contractual context. To put it another way, there are no magic words that must be used.

As a practical matter, to avoid any dispute, parties seeking to exclude liability for misrepresentation would be well advised to stick to the well-established formulations – not least as this is a decision of a Master, and there is no guarantee that the same approach will be taken in other cases. It shows, however, that a departure from those formulations need not always be fatal.

Background

The claimant (the "Buyer") entered into a share purchase agreement with the defendant (the "Seller") to purchase the shares in Nottingham Forest Football Club Limited (the "Club").

As part of the due diligence process before entering into the SPA, the Seller gave the Buyer access to a spreadsheet which identified the liabilities of the Club as being £6,566,213.66 as at the end of 2016. After entering into the SPA, the Buyer alleged that the Club's liabilities at the end of 2016 were actually £10,363,395.00. It brought a claim against the Seller for statutory misrepresentation on the basis of this discrepancy.

The Seller applied to strike out the misrepresentation claim and/or obtain summary judgment on the basis of an entire agreement clause contained in the SPA. This provided as follows:

"This agreement … constitutes the entire agreement between the parties and supersedes and extinguishes all previous discussions, correspondence, negotiations, drafts, agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter."

The SPA also contained a number of indemnity provisions, including:

• The Seller agreed to indemnify the Buyer against all losses arising out of the Club's liabilities "being in excess of £6,600,000" as at the end of 2016.
• The Seller agreed to indemnify the Buyer against losses suffered due to particular misrepresentations including as to its shares in the Club or its power to sell them, the existence of material contracts not disclosed to the Buyer, and the absence of new payment obligations resulting from the share sale.

It also contained a clause stating that, unless the SPA expressly provided otherwise, rights and remedies provided under the SPA were "in addition to and not exclusive of any rights or remedies provided by law".

Decision

The High Court (Master Bowles) held that the Buyer's claim in misrepresentation was expressly excluded by the entire agreement clause, and accordingly there was no realistic prospect of the claim succeeding. He therefore struck out the claim and granted summary judgment in favour of the Seller in respect of it.

The Buyer relied on the Court of Appeal's judgment in AXA Sun Life Services Plc v Campbell Martin Ltd [2012] Bus. LR 203 to argue that the effect of an entire agreement clause of the sort considered here was only to prevent any pre-contractual representations becoming part of the contract; it was not sufficient to exclude liability for misrepresentation.

The Master rejected this argument, referring to the Court of Appeal's acknowledgement in Axa itself that its decision was only authority for the construction of the particular clause in that case. He noted that, in Axa, Rix LJ identified a number of "themes" regarding the construction of clauses which are said to exclude liability for misrepresentation. First, an exclusion of liability for misrepresentation must be clearly stated. Second, conventionally, that is achieved by the use of well-worn formulations, such as that no representations have been relied on, or there is to be no liability for misrepresentation.

However, the Master said, he did not read Rix LJ's judgment as establishing that a clause which effectively excludes liability for misrepresentation must always be set out in a particular form. The effect and meaning of an entire agreement clause (as any other clause) must always be a matter of the construction of the particular clause set in its particular context.

In this case, the Master said, he was satisfied that the intention of the entire agreement clause was to exclude claims in misrepresentation, for a number of reasons:

• The "deliberately wide language" of the entire agreement clause, read in the context of the considerable steps the parties had taken to enable claims likely to arise in respect of the agreement to be dealt with within the four walls of the SPA (under the indemnity clauses referred to above), demonstrated the contractual intention that disputes arising under it should be resolved within the contractual framework and not otherwise.
• The matters the entire agreement clause purported to extinguish were not confined to matters of a contractual nature, but included matters such as "correspondence", "negotiations" and "assurances", as well as "representations", which could include factual matters asserted in the course of negotiations. This contrasted with the entire agreement clause in AXA, which (the Master said) referred to "representations" alongside words that were "of an obviously contractual nature". In the Master's view, it followed from the wider language in the SPA that "representations" should bear its more usual legal meaning.

The Master said his decision did not negate the effect of the clause preserving other rights and remedies. The entire agreement clause prevented claims in collateral contract or misrepresentation of the kind that may arise where "lengthy and complicated negotiations result in an ultimate formal agreement". It did not affect the right to make claims "of a different nature".