Misrepresentation claims, from rescission to damages.
Counsel for claims where a false statement induced a contract, including business sales, property transactions, investments and supply agreements.
Misrepresentation cases are won on detail. What exactly was said or written, when, by whom, and what the buyer would have done had the truth been known. The legal framework is settled, so the work lies in assembling a chronology that shows inducement and reliance, and in valuing the difference between what was promised and what was delivered.
Clerk&Counsel places independent barristers on misrepresentation claims for businesses, investors, purchasers and sellers across England and Wales. We are a clerking agency rather than a chambers or a firm of solicitors, so instructions run directly between you and the barrister we introduce, on a fee agreed before work starts.
These claims usually sit alongside a contractual case, and the strategy question is which route gives the better remedy. Contract damages measure the promise; misrepresentation damages measure the loss caused by being drawn into the deal at all. In a bad bargain the second measure is often significantly larger, and in a fraudulent case remoteness rules are relaxed.
Claims counsel takes on.
- Share and asset sale disputes where accounts, pipeline or customer data were overstated.
- Property transactions where replies to enquiries were incomplete or wrong.
- Investment and joint venture claims based on forecasts and financial information.
- Franchise disputes turning on projected turnover and earnings claims.
- Vehicle, plant and equipment sales misdescribed as to condition, history or mileage.
- Insurance disputes involving non-disclosure and misstatement.
- Claims combining misrepresentation with breach of warranty and negligent misstatement.
- Defending allegations of misrepresentation, including reliance and causation arguments.
Rescission, damages and the practical choice.
Rescission sets the contract aside and restores the parties to their previous positions. It is powerful in a business sale or investment case, but it is an equitable remedy and can be barred by affirmation, lapse of time, intervening third party rights or the impossibility of restoring what was transferred.
Where rescission is unavailable or unattractive, damages take over. Under section 2(1) of the Misrepresentation Act 1967 the maker of the statement must prove reasonable grounds for believing it true, which is a real advantage to a claimant. Under section 2(2) the court may award damages in lieu of rescission for an innocent misrepresentation.
Fraudulent misrepresentation carries the widest recovery, covering all loss flowing directly from the deception whether foreseeable or not, and exclusion clauses cannot shield it. Pleading fraud is a serious step and counsel will only settle those allegations where the evidence properly supports them.
Building inducement and reliance.
The chronology is the centre of the case. Marketing material, information memoranda, replies to enquiries, emails between the negotiating teams, board minutes and the final drafting all combine to show what was represented and what was relied upon.
Reliance must be established, not assumed. Where the buyer carried out its own due diligence, the other side will argue that reliance was on that exercise rather than on the statement. Counsel will address that early and shape the witness evidence to answer it.
Quantum usually needs expert input. A valuation of the business or asset as represented, and as it truly was, is the practical basis for damages, and instructing the right expert at the right time keeps that evidence proportionate.
Fixed fees at every stage.
An initial written advice covering merits, remedy and limitation is quoted as a fixed fee once we have seen the transaction documents and key correspondence. It is the cheapest way to find out whether the claim justifies the costs risk.
Pleadings, applications and interim hearings are each quoted separately, and trials are priced as a brief fee plus refreshers so the total is known in advance.
Where a solicitor is instructing, we can agree a staged structure that matches the court timetable and keeps the client's exposure predictable through disclosure and witness statements.
Specialist areas within this practice.
- Breach of contract barrister
Contract claims that often run alongside misrepresentation.
- Civil fraud barrister
Deceit, conspiracy and asset recovery claims.
- Professional negligence barrister
Claims against advisers who failed to protect you in the deal.
- Commercial litigation barristers
Counsel for Business and Property Court disputes.
Send the deal documents and the statements relied on.
Give us the contract, the pre-contract material and a short chronology. We will come back with counsel options, a fee basis and an initial view on remedy.
Common questions.
What has to be proved in a misrepresentation claim?
You need a false statement of fact or law, made by the other party or on their behalf, which induced you to enter the contract and caused you loss. Statements of opinion, sales puff and future intentions are generally excluded unless the maker did not hold the opinion or intention claimed.
What is the difference between fraudulent, negligent and innocent misrepresentation?
Fraudulent misrepresentation requires knowledge of falsity or recklessness and carries the widest measure of damages. Negligent misrepresentation under section 2(1) of the Misrepresentation Act 1967 reverses the burden of proof onto the maker. Innocent misrepresentation gives rescission or damages in lieu at the court's discretion.
Can I get out of the contract altogether?
Rescission unwinds the contract and returns the parties to their pre-contract positions. It can be barred by delay, affirmation, third party rights or an inability to make restitution, so acting promptly once you discover the misrepresentation matters a great deal.
Does an entire agreement clause block the claim?
It can limit reliance on pre-contract statements, but such clauses are subject to statutory controls and cannot exclude liability for fraud. Whether the wording is effective on your facts is a question counsel will address early because it often determines whether the claim is worth bringing.
How is a misrepresentation claim funded?
We quote fixed fees for advice, pleadings and hearings. In substantial cases counsel can work alongside a solicitor and, where the merits and value justify it, discuss alternative structures with the instructing firm.