Litigation

UK LITIGATION REVIEW 2021 8 qualification, but is described as an agent in the body of the agreement, is bound to the contract as principal, not as agent, i.e., the signature takes precedence (unless the contract provides another means of resolving the inconsistency). The claimant was therefore held to be a principal contracting party to the contract. Online Signatures In Green v Petfre (Gibraltar) Ltd 6 the High Court considered the incorporation of terms the context of an online casino. The claimant had won a large sum in a game on the defendant's website. The defendant, in refusing to pay out, relied upon a clause in its terms and conditions which stated that payment would not be made in the event of a glitch or malfunction in the software. The claimant had ticked a box upon registering his account, indicating that he accepted these terms and conditions. The court found that the clause did not apply on several grounds. Of particular interest, however, was the court's finding that the relevant clause had not been properly incorporated. Often, the terms of an agreement will be set out in full in a single document which is then signed by the relevant parties. Where a document has been signed, the courts generally accept that the clauses therein have been effectively incorporated, even where they are onerous and unusual. However, terms can also be incorporated by providing the other party reasonable notice of them (as when a party provides a copy of its standard terms and conditions). Where this is the case, it must be shown that the counterparty was given reasonable notice of those terms. In relatively rare circumstances, the courts have also found that where specific terms are particularly "onerous of unusual," it would need to be shown that sufficient steps were taken to bring these terms to the other party's attention in order for them to be effectively incorporated. On the facts of this case, the court found that the term, allowing for the voiding of bets and non-payment of winnings, was particularly onerous, and that the claimant had not been given sufficient notice for it to have been properly incorporated into the agreement. While the judge does not express an explicit view as to whether the defendant's ticking of the relevant box amounted to a signature, their conclusion indicates it does not. 6 [2021] EWHC 842 (QB) 7 [2021] EWHC 363 (Comm) This case will be of interest to parties that rely on similar methods to bring their terms and conditions to the attention of clients or customers. It suggests that exclusion clauses, limitations of liability and any other clause at risk of being "onerous or unusual" and purportedly incorporated in this way may be ineffective if sufficient steps were not taken to bring them to the other party's attention. Misrepresentation In Leeds CC v Barclays Bank Plc 7 the Commercial Court considered the correct legal test for reliance in misrepresentation claims and, in particular, to what extent a claimant needed to be "aware" of the representation being made in order to show reliance. The claimants sought to rescind LIBOR-referenced loan agreements entered into with the defendant bank, which they alleged had made implied fraudulent misrepresentations linked to manipulation of LIBOR. The defendant sought to strike out the claims on the basis that the claimants could not show they had been aware of the representations (and therefore could not show sufficient reliance), or in the alternative, that the claimants had affirmed the loan contracts. In striking out the claims, the court found that a mere "assumption" as to the matters alleged to have been represented is not sufficient—a claimant must demonstrate they were aware of the relevant representations. The degree of awareness required will depend on the circumstances, although the line between awareness and assumption may become difficult to distinguish in some cases. This would be particularly so where representations were implied by conduct, for example, a bidder raising their paddle during an auction would be understood to be representing that he/she was both willing and able to pay for the item. The court noted that it would be particularly important to demonstrate awareness where the representations complained of were implied, or where a party could be said to have entered into an agreement on the basis of both a putative representation and a separate assumption. The High Court has also given further consideration to the scope for warranties to amount to a contractual representation, such that the contract may be said to be repudiated in the event of a breach of those warranties. In Arani v Cordic Group Ltd, 8 the buyer of a business sought to bring a claim for misrepresentation on the 8 [2021] EWHC 829 (Comm)

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