Excluding liability for misrepresentation in share purchase agreements

In the recent High Court case of NF Football Investments Ltd and another v NFCC Group Holdings Ltd and another [2018] EWHC 1346 (Ch), which concerned… Read more

In the recent High Court case of NF Football Investments Ltd and another v NFCC Group Holdings Ltd and another [2018] EWHC 1346 (Ch), which concerned a dispute arising from the sale of Nottingham Forest Football Club (the Club), the court found that a misrepresentation claim was successfully excluded by an entire agreement clause in a share purchase agreement (SPA) which did not expressly exclude liability for misrepresentation.

At first glance, this decision may seem to go against the grain of the approach the courts have taken in recent years on attempts to construe entire agreement clauses as excluding claims for misrepresentation, namely that an exclusion or limitation of liability for misrepresentation must be clearly stated in the agreement (as held by the court in Axa Sun Life Services plc v Campbell Martin Ltd [2011] EWCA Civ 133). However, it appears that the High Court’s finding in this case is very much a product of the facts and the specific provisions of the SPA for the sale of the Club.

In the case, the buyer of the Club argued that the seller had misrepresented the size of the Club’s liabilities by several million pounds. The SPA contained a specific indemnity given by the seller to the buyer in respect of losses suffered by the buyer in connection with the liabilities of the Club being in excess of a defined amount.

Considering this indemnity and the entire agreement clause (which included no wording negating reliance by the buyer, or excluding liability for misrepresentation), the High Court found that the parties had “set up contractual procedures to deal with claims likely to arise under and in respect of the agreement within the four walls of the agreement” and that, accordingly, a non-contractual claim for misrepresentation covering the same ground as the specific indemnity, was excluded.

While recognising the finding in Axa that an exclusion or limitation of liability for misrepresentation must be clearly stated, Master Bowles noted in his judgment in the case that he did not consider that the judgment in Axa required a particular form of words to effectively exclude liability for misrepresentation and that, in all cases, this will be a matter of the construction of the relevant clause and the circumstances of the case.

This case seems unlikely to significantly impact the application of the finding in Axa and should probably be regarded as an outlier based on its facts – it won’t always be the case that the subject of a potential misrepresentation claim on an acquisition will be covered by a specific indemnity in the transaction documents.

The key takeaway from this case for parties to acquisitions (and sellers in particular) is to ensure that the transaction documents contain a clearly stated exclusion of liability for misrepresentation.

While there is no set formulation, this can be achieved by including wording in the SPA (or asset purchase agreement on a business sale) that no representations have been made or relied upon, or that no party will be liable for misrepresentation.

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