First Tower Trustees Ltd v CDS (Superstores International) Ltd [2018] EWCA Civ 1396

The landlords granted commercial premises to CDS. Before the transaction, replies to enquiries addressed environmental matters, but the landlords received information about asbestos contamination which was not properly disclosed. The lease included a clause stating that the tenant had not relied on representations by the landlords. When misrepresentation was alleged, the landlords relied on that wording as contractual estoppel. They also argued that acting as trustees limited liability to trust assets. The Court of Appeal considered the statutory control of the non-reliance provision and the separate argument based on trustee capacity.

Did the lease's non-reliance clause engage statutory reasonableness despite contractual estoppel, and did acting as trustees alone limit the landlords' personal liability?

The Court of Appeal dismissed the landlords' appeal. A non-reliance clause which prevents proof of an otherwise actionable pre-contract misrepresentation falls within section 3 of the Misrepresentation Act 1967. Describing its effect as contractual estoppel did not remove the statutory reasonableness requirement.

The clause failed that assessment on the facts, particularly because reliable replies to conveyancing enquiries serve an important practical function. The court also rejected the suggested limitation of liability merely from the landlords acting as trustees. A trustee's capacity does not itself restrict personal liability to trust assets; an effective contractual provision would be required. The case therefore distinguishes whether a clause can operate contractually from whether statute permits it to exclude the liability in question.

A non-reliance clause that excludes liability or remedies for misrepresentation is subject to section 3's reasonableness control, including when framed as contractual estoppel. Acting as trustee does not by itself limit contractual or misrepresentation liability to the value of the trust assets.

First Tower is central to modern misrepresentation exclusions. It prevents avoidance of statutory scrutiny by drafting the clause as an agreed factual basis rather than an express exclusion. AXA supplies the earlier distinction between defining the written agreement and removing misrepresentation liability. The conveyancing context was material to reasonableness, so the result is not a declaration that every non-reliance clause necessarily fails. The separate trustee-liability point also requires analysis of actual limitation wording, not a label attached to the parties.