• In the case of Axa Sun Life Services Plc v Campbell Martin Ltd [2011] E.W.C.A. Civ 133, it was held that entire agreement clauses do not generally exclude one party from liability for prior misrepresentations. Unless the clause explicitly deals with liability for misrepresentation, it will be construed as only barring claims for breach of warranty.

Facts of the Case

  • C was an insurance company that agreed to act as a representative for companies D on C’s standard terms.
  • Clause 24 of C’s contract was an ‘entire agreement’ clause, superseding ‘any prior promises, agreements, representations, undertakings or implications whether made orally or in writing.’
  • Clause 24 did not affect any obligations in any such prior agreements that would continue after termination.
  • Clause 15.2 barred D from relying on rights of set-off, counterclaim or credit against C. Clause 1.6 of Schedule 4 stated that C’s statements as to monies owed to them by D were binding unless there was a manifest error.
  • C brought an action against D for sums due under this contract. Against these claims, D sought to assert misrepresentation, breaches of warranties and implied terms.

Issues

  • Did the contract terms prevent D from relying on counterclaims of misrepresentation, breaches of warranties and implied terms?
  • Even so, were the contract terms void for unreasonableness under the Unfair Contract Terms Act 1977?

Held by the Court of Appeal (Civil Division)

  • Finding for D, that clause 24 did not exclude liability for misrepresentation as it did not explicitly refer to misrepresentation or use the normal formulas for clauses with that effect. D could rely on misrepresentation as a defence, but D could not rely on breach of warranties as such.
  • While clause 24 and clause 1.6 of Schedule 4 were reasonable under the 1977 Act, clause 15.2 was void for unreasonableness. Since the rest of the contract preserved D’s rights to set offs and defences, clause 15.2 was incongruous with the contract.

Rix L.J.

  • Given that clause 24 is concerned with agreements and not representations, and did not refer to ‘misrepresentations,’ it is not fertile ground for C’s argument that the clause supersedes misrepresentation.
  • “The essence of agreement is that it is concerned with matters which the parties have agreed. The essence of misrepresentation, however, is that it is not concerned with what the parties have agreed, but rather with inaccurate statements (innocently, negligently or fraudulently inaccurate statements) which have been made by one party to the other, have been relied upon by the representee in entering into their agreement, and which may give the representee rights to rescind that agreement and/or claim tortious or quasi-tortious damages by reason of loss arising out of entering into the agreement. In a clause therefore in which three parts are plainly concerned only with agreement, including two other parts of the self-same sentence…and where the critical single word ‘representations’ (not misrepresentations) is likely in context to refer to representations which might be argued, but for the clause, to become terms of the agreement, and where the other important word ‘supersede’ is essentially a word of agreement rather than exclusion, I would thus provisionally conclude that misrepresentation and the exclusion of misrepresentation or liability for it are simply not the business of the clause at all” [81].
  • Alman and Benson v Associated Newspapers Group Ltd [1980] held that for a clause to exclude liability for misrepresentation it would require an explicit term, along the lines of a term ‘acknowledging that the parties had not relied on any representations entering into the contract.’
  • Similarly, Thomas Witter v TBP Industries [1996] held that a party seeking protection from liability for damaging untrue statements cannot be mealy-mouthed in his cause. They must make it readily apparent that they are limiting liability for falsehoods.