Fraudulent & Negligent Misrepresentation & Exclusion Clauses...Help needed.Watch
I am currently doing a university assignment / moot and was wondering if anyone could give me any tips on the below scenario.
I am acting on behalf of the claimant.
IN THE TECHNOLOGY AND CONSTRUCTION COURT
Global Solutions Limited v Data Systems Limited
The defendants Data Systems Limited (‘Data Systems’) were engaged as a specialist contractor by a developer, Global Solutions Limited (‘Global’), for the installation of a state of the art electronic data protection system known as DPS. The parties negotiated a contract package with a contract sum of £50 million for the design, build and management of DPS to be carried out by Data Systems with a handover date of July 31st 2008. During the negotiations Data Systems had assured Global that the proposed time scales were based upon a detailed programme and planning analysis and were achievable.
The contract contained an entire agreement (at clause 13.1) as follows:
‘Subject to clause 13.2, this agreement and Schedules shall together constitute the entire understanding and whole agreement between the parties as applicable to its subject matter and shall supersede any previous negotiations, discussions, correspondence, representations or agreement between the parties with respect thereto notwithstanding the existence of any provision of such prior agreement that any rights or provisions of such prior agreement shall survive its termination. The term ’this Agreement’ shall be construed in accordance with this provision. This clause shall not exclude liability of either party for fraudulent misrepresentation.’
The work carried out by Data Systems was delayed and an extension of time was granted to Data Systems with a revised completion date of March 31st 2009, as set out in a Letter of Agreement signed by both parties. Following further delay beyond this date, it was agreed that Global would take possession of part of the DPS system with four remaining sections to be released incrementally. The final section was completed and handed over to Global in March 2013 at a total cost of £250 million.
Meanwhile in 2012 Global commenced a claim against Data Systems in the sum of over £700 million in damages.
The grounds of the claim were as follows:
that Data Systems had made fraudulent and negligent misrepresentations relating to the resources and expertise it purported to have in order to secure the DPS installation project.
That Global had relied upon the misrepresentations when awarding Data Systems the DPS project and when entering into the contract and the further Letter of Agreement.
Data Systems responded on the following grounds:
Data Systems had not made the representations relating to the resources and expertise as alleged, or alternatively that such representations were not actionable misrepresentations.
That the entire agreement clause excluded any liability for misrepresentation.
In order to resolve the whole dispute the judge in the Court of First Instance (TCC) has agreed to try the following issues:
Four main issues are raised as follows:
(i) Is Global entitled to damages for fraudulent misrepresentation?
(ii) Is Global entitled to damages for negligent misrepresentation?
(iii) Does the entire agreement clause have the effect of excluding a duty of care between Global and Data Systems in relation to representations? (iv) Does the entire agreement clause exclude liability for fraudulent and negligent misrepresentation?
While you're waiting for an answer, did you know we have 300,000 study resources that could answer your question in TSR's Learn together section?
We have everything from Teacher Marked Essays to Mindmaps and Quizzes to help you with your work. Take a look around.
If you're stuck on how to get started, try creating some resources. It's free to do and can help breakdown tough topics into manageable chunks. Get creating now.
Not sure what all of this is about? Head here to find out more.