Abstract:
Misrepresentation continues to be one of the most commonly pleaded vitiating factors. When such a plea is made, the representor’s reply has often been that there is a contractual clause which affects the matter at hand, and the legal inquiry turns to whether the clause excludes liability for misrepresentation and, if so, whether it is reasonable. In recent times, a somewhat surprising argument has surfaced – that the clause estops any allegation of misrepresentation. Such estoppel takes two forms. The first – estoppel by representation – is a reasonably well-established doctrine. The second – contractual estoppel – is a recent and controversial concept, and has been gaining judicial support. But the application of the doctrine of contractual estoppel raises serious questions and doubts. This case note considers how and the extent to which Mr Justice Clarke’s judgment in Raiffeisen Zentralbank Osterreich AG v Royal Bank of Scotland [2010] EWHC 1392 (Comm) provides the clarification much needed in this area.