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On appeal from: [2011] CSIH 81

This appeal concerns a lease taken by the appellants, a limited liability partnership, of the respondents’ grouse moor, and whether in making certain pre-contractual representations the respondents owed a duty of care to the appellants. The Inner House of the Court of Session had found that the representations in question, an email relating to the stock of grouse on the moor, could only have been foreseen to be relied upon by the individual who received it (who went on to form the LLP), and so there was no proximity to establish a duty of care with the LLP.

The Supreme Court unanimously allowed the appeal. The representation contained in the critical email was undoubtedly of a continuing nature so long as the individual it was sent to remained the prospective contracting party. In continuing and concluding the contractual negotiations with the LLP through its agent without having withdrawn the representation earlier made to the agent as an individual, the respondents by their conduct implicitly asserted to the LLP the accuracy of that representation. The situation where a statement is made by one party to another, who in turn relies upon it in entering a contract with a third party is different to the present situation, where a statement was made during contractual negotiations by one prospective party to another in relation to the very transaction about which they were negotiating.

For judgment, please download: [2014] UKSC 9
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII