From: Sarah Green <>
To: Andrew Tettenborn <>
Date: 31/03/2015 09:33:51 UTC
Subject: RE: English Misrepresentation Act 1967

I share it.  The common law seems committed to making this into an Act for claimants.




From: Andrew Tettenborn []
Sent: 30 March 2015 16:14
Subject: English Misrepresentation Act 1967


A puzzling case today of interest to those who follow the fortunes of the English Misrepresentation Act 1967. In Taberna Europe CDO II Plc v Selskabet AF1 [2015] EWHC 871 (Comm), Taberna bought loan notes issued by Roskilde, a thoroughly bad Danish bank, on the secondary market from Deutsche Bank. They did so on the basis of negligent misrepresentations by Roskilde, and in due course claimed against the successor body to Roskilde, which it was arguable under Danish law had to pick up the tab for misrep claims.

They successfully recovered €26 million under s.2(1) of the MA 1967. This says:

"Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made that the facts represented were true."

The obvious riposte, made forcibly by the defendant, was that Taberna bought from Deutsche and the representations were made by Roskilde. But Eder J was having none of it. By buying the notes Taberna were put into direct contractual relations with Roskilde, one imagines by assignment, and (apparently) this was therefore a case where "a person has entered into a contract after a misrepresentation has been made to him by another party thereto". (See [105]).

Does anyone share my immediate instinct that this is a very rum interpretation of the 1967 Act?



Andrew Tettenborn
Professor of Commercial Law, Swansea University

Institute for International Shipping and Trade Law
School of Law, University of Swansea
Richard Price Building
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Phone 01792-602724 / (int) +44-1792-602724
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Andrew Tettenborn
Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe

Sefydliad y Gyfraith Llongau a Masnach Ryngwladol
Ysgol y Gyfraith, Prifysgol Abertawe
Adeilad Richard Price
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Lawyer (n): One versed in circumvention of the law (Ambrose Bierce)