Non-Contractual Disclaimers

Published 07 February 2017 by Herrington Carmichael LLP

Contractual disclaimers are not always treated favourably by UK law, with their validity limited by the law on unfair contract terms. However, a recent ruling has clarified that a non-contractual disclaimer excluding liability for negligent misstatements in documents online could be relied upon by a bank1.

The disclaimer in question was on the defendant bank’s website and stated that the bank would not accept any responsibility or liability arising out of any errors, omissions or misstatements contained in an online Investor Presentation - which included showing (under the heading Credit Risk) in graph form, coverage for non-performing loans.   It also included statements regarding its ability to absorb losses from non-performing loans.  The claimant relied on the statement and purchased subordinated notes via a secondary market from an investment bank.  The bank later fell into financial difficulty and was unable to make any principle or interest payments and the claimant  made a claim for damages based on misrepresentation.  The Court of Appeal (CA) agreed with the trial judge that the defendant bank had encouraged the investment bank to draw the Presentation to the claimant’s attention, and this was deliberately making it available with a view to the claimant relying on the Presentation for investment purposes. 

However, what was the status of the disclaimer, and could it be relied upon to avoid the claim?  The CA decided the disclaimer limited the nature and scope of the statements in the presentation to such an extent that the claimant was not entitled to rely on them as a basis for its investment decision.

The CA acknowledged the reality that, in recent years, there has been an increasing willingness to recognise that the parties to commercial contracts can determine for themselves the terms on which they will do business.  It found that the defendant was entitled to include a disclaimer of liability for the statements contained in the Presentation, and the claimant was “in no better position than the investors to whom the document was originally addressed”. 

The defendant was therefore entitled to rely on the disclaimer to resist the claim.

What does this mean?

Whilst the law is fairly settled in relation to contractual disclaimers, this case illustrates the risks of publishing information online and upon which others may rely.  This ruling suggests that the courts are willing to give more weight to non-contractual disclaimers; and provides a measure of insight into how they will treat information published on websites.

This means companies who make information – particularly financial information – available to others who may rely on that information should consider what disclaimers they should include.  Any disclaimer should be sufficiently robust to enable them to answer a damages claim.

How can we help?

Our experienced commercial solicitors can advise you on your contractual and ancillary documentation, and any issues in relation to disclaimer clauses.  We can help you draw up effective disclaimers to ensure your commercial interests are best protected.  Contact the experienced commercial solicitors at Herrington Carmichael for specialist advice as soon as possible.

Please contact Mark Chapman or Matthew Lea on 01276 686222.

 1 Taberna Europe CDO II plc v Selskabet AF 1.September 2008 (formerly Roskilde Bank A/S) [2016] EWCA Civ 1262

This publication reflects the law at the date of publication and is written as a general guide only - it is not intended to contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.