From: Matthew Hoyle <MHoyle@oeclaw.co.uk>

Sent: Monday 24 November 2025 12:46

To: obligations

Subject: Deceit in the UKPC

Members may be interested in the Judicial Committee's judgment today in Credit Suisse Life (Bermuda) v Ivanishvili [2025] UKPC 53 - https://jcpc.uk/uploads/jcpc_2024_0022_0035_judgment_7bcd2fdec1.pdf. There are quite a few significant private law issues canvassed in the judgment, but the most important relates to deceit.

There has been a battle raging in English law over the last few years as to whether a claimant alleging deceit needs to establish that they consciously thought about the misrepresentation (rather than simply made an unconscious assumption or acted in a way in which they would not have acted had they been told the truth). Following the judgment of Cockerill J (as she then was) in Leeds City Council v Barclays Bank [2021] EWHC 363 (Comm); [2021] QB 1027 there have been at least five High Court judgments on this topic (Crosley v Volkswagon, Loreley v Credit Suisse, Allianz v Barclays,  Farol Holdings v Clydesdale Bank and Skatteforvaltningen v Solo Capital, which have taken slightly different views on the problem (and none have, at least yet, been appealed such as to produce an authoritative answer).

Lord Leggatt, giving the judgment of the Board, says that there is no such requirement as an element of the cause of action (at [157]). The reasoning is at [159]-[176], but the critical point seems to be at [176]:

What matters is whether, in a case where the claimant has acted on an assumption, the assumption was one which the claimant would naturally be expected to make in response to the defendant's words or actions or whether it was one made independently by the claimant. If the claimant has acted as a result of an erroneous belief not caused by the defendant, the defendant will not be liable.

That links back to [162]:

It is an everyday feature of human experience that people form and act on beliefs without any conscious awareness or thought. If someone takes advantage of such unconscious mental processes to deceive another person and cause her to act to her detriment, there is no reason why a claim for damages should not lie. The mischief is no less than in a case involving conscious awareness.

In other words, the defendant's actions must have induced a conscious thought or an unconscious assumption in the claimant. But provided they have done so, and that thought or assumption caused the transaction, the claim is established.

The implications of this judgment may be significant. One of the main effects of Leeds was to make it much harder for parties to bring claims based on implied representations which at times bordered on attempts to circumvent English law's general rule that non-disclosure is not actionable. Such parties will still face an uphill battle (because in e.g. Farol Holdings and Loreley the judges (Zacaroli and Cockerill JJ, as they were) noted that conscious awareness didn t ultimately arise because there were no reps. But this judgment opens the door again for more creative implied rep claims.

Matthew Hoyle

Barrister

One Essex Court

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