UCB Corporate Services Ltd v Thomason & Anor

Neutral Citation Number: [2005] EWCA Civ 225 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM MR JUSTICE PUMFREY [2004] EWHC 1164 (Ch) Case No: A3/2004/1214 Royal Courts of Justice Strand, London, WC2A 2LL Monday, 7 March 2005 Before : LORD JUSTICE BROOKE Vice-President, Court of Appeal (Civil Division) LORD JUSTICE LATHAM and LORD JUSTICE NEUBERGER - - - - - - - - - - - - - - - - - - - - - Between : UCB CORPORATE SERVICES LTD - and - KENNETH ROY THOMASON CHRISTIAN ANN THOMASON Claimant/ Appellant Defendants/ Respondents - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Wordwave Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mark Wonnacott (instructed by Shammah Nichols) for the Appellant Tom Leech (instructed by Lawrence Graham) for the Respondents - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Latham : 1. On the 19th May 2004, Pumfrey J dismissed a claim by the appellants for £2,812,426.55p plus interest under two guarantees dated the 6th August 1990, alternatively for the same sum as damages for a breach of a waiver agreement dated the 20th January 1997. There was no dispute between the parties as to the original liability of the respondents under the guarantees. The question was whether or not the respondents were entitled to rely on a waiver agreement by which the appellants agreed to accept a sum in the region of £34,000, or whether, by reason of breaches of that agreement, alternatively misrepresentation, the appellants were entitled to insist upon enforcing the respondents’ liability under the guarantees. In considering the issues raised by the parties, the judge considered not only the effect of the terms of the waiver agreement, but also the provisions of Section 2(2) of the Misrepresentation Act 1967. The judge concluded that the terms of the waiver agreement did not permit the appellants to resurrect the original guarantee liabilities; and he further concluded that the appellants, although entitled to rescind the agreement for non-fraudulent 2. 3. 4. 5. misrepresentation, should not be entitled to that remedy, pursuant to Section 2(2) of the Act, on the grounds that it would be inequitable to allow them to do so and that the appellants, having not established any loss as a result of the misrepresentation, were not entitled to damages in lieu. He accordingly dismissed the claim. The appellants, with the leave of the judge, appeal against both conclusions. The facts reflect what seems to me to be the clear unease which the judge felt about coming to the conclusion that he did. The story is a sorry tale of prevarication and half truth on the part of the respondents. The first respondent was a Conservative Member of Parliament at the time that the question of his liability under the guarantees arose. He and his wife, the second respondent, clearly had no means of meeting the terms of the guarantees. The events which ultimately gave raise to the waiver agreement describe a desperate rearguard action to avoid bankruptcy and the consequences which would flow from that. The guarantees which underpinned the appellants’ claim related to a loan to a company, Karelodge Ltd, which owned and managed nursing homes. The debt pursuant to the guarantees crystallised in March 1995 when the company was wound up on the petition of the Inland Revenue. The amount of the debt guaranteed was in excess of £2.9 million. Statutory demands were served on the respondents on the 28 th June 1995. Thereafter there were complex multi-party negotiations in which the respondents sought to come to some arrangement with their creditors, including the appellants. It was not merely the respondents’ solvency which was at stake; there would have been clear embarrassment to the then government, as the judge found, if a by-election was caused by the bankruptcy of the first respondent. The first respondent is and was a solicitor. He, on the judge’s findings, instructed Sir Gerrard Neale, described as a solicitor with Radcliffes, as his negotiator. There is no doubt that, whatever may have been his original status, Sir Gerrard was acting as the respondents’ solicitor by the time the negotiations commenced in earnest in September 1995 to try to resolve the respondents’ financial problems. Those negotiations resulted in a suggestion that the first respondent should produce a statement of affairs which could then be put to all the banks with whom the respondents had liabilities. The consequence was that on the 18 th December 1995, the respondents each swore affidavits in which they purported to set out their income and expenditure, their capital assets, and a statement as to the capital transfers with which they had been concerned in the previous five years. 6. The affidavits that the respondents made were, and this is not disputed, misleading. The judge identified the statements which created the problems as follows in paragraph 11 of his judgment: “(a) On page three of the Income and Expenditure Statement it is said that Mr Thomason is responsible for outgoings of £10,000 in respect of Rent of Bromsgrove home. (b) baldly Bromsgrove home rented by Mr & Mrs KRT. Paragraph 2 of the list of Properties on page 4 states Paragraph 6 refers to Property sold to CAT at 10 (c) Carysfort Road, Bournemouth. There is a statement that Mrs Thomason has sold 10 Carysfort Road, Bournemouth realising the sum of £14,369 of which some £9,000 has been laid out in maintenance costs to some other property and in making provision for income tax. In paragraph 9, four properties are referred to: 16 (d) Carlton Close Road and 7 St Clements Road, Bournemouth; 18 Station Road, Poole and Cottages Overcombe, Weymouth. The first three properties are said to stand in the name of Mrs Thomason and the fourth in the name of Mr Thomason. All four are said to be mortgaged to the Midland Bank to secure a loan, which exceeds their value, and to generate income less than the sums required to service the loan. It is then stated that the Midland Bank have discussed arrangements to re-finance these loans and a formal offer is currently awaited. There will be no surplus income or equity produced as a result of these proposals. (e) Finally, mention is made of shares in a company called Tateglass Ltd, which is said to be a holding company. These shares are said to be owned by Mrs Thomason and not thought to have any net value.” 7. 8. 9. These statements were not consistent with information which had been given to one of the respondents’ creditors, Lombard North Central plc who had knowledge of two companies in which the respondents had an interest, Metalaw 1 Ltd and Rhetor 13 Ltd. Before any information had been given in relation to these companies a further meeting took place between Sir Gerrard and representatives of the creditors with the exception of the Midland Bank. Sir Gerrard was not able to put forward any definite proposals from the respondents; and the representative of Lombard’s expressed concerns about the disclosure that had been made in affidavits. Those concerns elicited the information that the Bromsgrove home was rented from Mrs Thomason’s mother; but no further details were made available. In June 1996 Sir Gerrard was, however, able to put forward a proposal, based on the disclosures that had been made, which showed, if correct, that the creditors would have no prospect of achieving any real benefit from bankruptcy, but that a loan of £100,000 could be made by the first respondent’s mother to the respondents in exchange for an assignment of the guarantees, which would provide at least some money for each of the creditors. At first the appellants refused that offer. But after a meeting on the 2nd August 1996, the appellants indicated in a letter of the 9th August 1996 from their solicitors Alsop Wilkinson that they would accept such an offer provided that the respondents were prepared to provide an up to date statement of affairs. This was provided by way of a second affidavit of the 3rd September 1996 which did not make any significant variation to the disclosure in relation to the matters which had been set out in the first affidavit. On the 30th October 1996, the successor solicitors to Alsop Wilkinson then wrote to indicate that they would require a third affidavit which should include a clause confirming that the respondents had made full disclosure not only of all their assets and liabilities but of all matters of which they were aware which might not be known to the appellants and might reasonably be expected to effect their willingness to enter into the agreement. The letter stated: “such clause would be an express condition of the agreement and will make clear that if in the event further assets are discovered at a later stage which breaches this condition such breach may be treated by UCB as a repudiation of the agreement and would entitle the Bank at its option, to treat the agreement at an end and to proceed for the full entirety of the sum due under the Deed of Guarantee….” 10. As a result the respondents each provided a further affidavit which contained the following paragraph: “I further confirm that I have made known all other matters which I am aware might reasonably be expected to affect UCB’s willingness to enter into a commercial agreement to discharge my obligations to them.” 11. The consequence was that the appellants then drafted and signed the waiver agreement of the 20th January 1997 in the following terms: “We write to confirm that in relation to the affairs of Mr & Mrs KR Thomason and on the basis that they have made full disclosure not only of all their assets and liabilities but of all other matters of which they are aware that may [not] have been known to the Bank and might reasonably have been expected to affect the Bank’s willingness to conclude this waiver, the Bank no longer holds them liable personally, jointly or severally in respect of any sums due to the bank or its subsidiaries in respect of any personal indebtedness whatsoever and releases them from any liability under joint and several guarantees by them or either of them to the Bank or any of its subsidiaries PROVIDED THAT in the event that further material assets are discovered in respect of which either or both of Mr & Mrs KR Thomason had a proven beneficial interest at the date hereof the Bank will be entitled at its option to treat the agreement as at an end and proceed for the entirety of the sum due under the Deed of Guarantee (less any sums paid pursuant to this letter) and to be free from any obligation of confidentiality.” 12. The appellants’ claim was pleaded on the basis that the respondents had “concealed” matters of which they were aware and which might reasonably have been expected to affect the appellants’ willingness to enter into the waiver agreement. There was no allegation of fraud; and at the trial, the appellants made it clear they were basing their claim on a non-fraudulent failure to disclose the following matters, which are set out in paragraph 20 of the judge’s judgment as follows: The Bromsgrove home had been acquired on the 27th “(1) July 1993 in the names of Mr Thomason’s mother Constance and Richard Thomason at that time a student at university; (2) The Bromsgrove home had been acquired by those persons on trust for members of Mr & Mrs Thomason’s immediate family; (3) contracts to purchase the Bromsgrove home had been made; The trust had not been executed until after the Mr Thomason had signed the contract to purchase the (4) Bromsgrove home on behalf of those persons; Mrs Thomason had following the death of her mother (5) on 19th November 1992, inherited more than £100,000 which had been applied towards the completion of the purchase of Bromsgrove home; No rent had been paid, and that in lieu of rent Mr & (6) Mrs Thomason had carried out works (costing £73,412.12p) to the property for the benefit of themselves and their immediate family (7) behalf of all parties; Mr Thomason had drawn the trust and lease, acting on (8) Bromsgrove home; Mr Thomason guaranteed the mortgage on the Mr Thomason had sold 10, Carisford (sic) Road to (9) Rhetor 13 Ltd, a company which had been incorporated in 1995; and of which the only directors and shareholders were Richard Thomason and Edward his brother both of whom were still at university; (10) Mr Thomason was a shadow director of Rhetor 13; (11) The Midland Bank properties had been transferred to a company called Jessna 3 Ltd, incorporated in 1995, and whose only directors and shareholders were Richard and Edward; (12) guarantee for the liabilities of Jessna; Mr Thomason had given the Midland Bank a Mr Thomason had reached a separate agreement with (13) the Royal Bank of Scotland to continue to service the debts of Tateglass Ltd.” 13. 14. 15. Essentially the judge found that the appellants’ case in respect of non-disclosure had been established save for the allegations relating to Jessna 3 Ltd. It is not necessary to go into the details of those latter allegations, save to note that the judge disbelieved explanations given to him in evidence by the first respondent. But he was satisfied that the nub of the appellants’ complaint in fact related to matters arising after the date of the waiver agreement: and as to the matter of the guarantee the judge was not prepared to make findings as to its effect because not all those involved in the transactions were before him or had given evidence. The non-disclosure which the judge found established in relation to the Bromsgrove home was extensive. Having heard the respondents’ evidence, in particular that of the first respondent, his comments were, in the circumstances, restrained. He formed “a very unfavourable view” of the first respondent’s straightforwardness and failure to make a full and frank disclosure. He said “there was a lamentable failure to be frank with the bank”. A short recitation of the judge’s findings of fact demonstrated that these conclusions by the judge were more than amply justified. They were as follows. The information disclosed about the Bromsgrove home was, as I have set out above, the fact that it was rented by the respondents at an annual rental of £10,000. The evidence established that it was purchased for £244,383, completion taking place on the 18th June 1993. The first respondent’s mother, Constance, and his son Richard were registered as proprietors on the 7th July 1993, the first respondent having signed the contract of sale. The purchase monies were raised as follows. £61,228.70p came from the estate of the second respondent’s mother Flora, being part of the proceeds of the sale of her home in Bournemouth. £75,000 was said to have been provided by the first respondent’s mother Constance, and £32,000 by the trustees of a trust established by the first respondent’s father. It is not entirely clear precisely how the balance was provided, but the judge ultimately concluded that it also came from the estate of the second respondent’s mother. That estate had been sworn at £193,621 on the 16 th February 1993. The first respondent’s mother and the son Richard, immediately on obtaining title to the property, executed a declaration of trust reciting that £75,000 of the purchase price was contributed by the first respondent’s mother and that the balance was contributed from funds “held for other beneficiaries as hereinafter appearing”. They declared that they held the Bromsgrove home on trust as to 75 of 241 parts for the first respondent’s mother in fee simply absolutely and as to the remainder upon trust for such of the first respondent’s then children as attained the age of 25 years. The justification for describing the balance of the purchase price in the way it was would appear to have been the fact that the money provided from the second respondent’s mother’s estate, essentially by the second respondent, was that that estate was affected by a “letter of wishes” dated the 26 th September 1992 written by the second respondent’s mother to the second respondent in the following terms: “Dear Anne, Roy has asked me to write down my wishes for the future so that everything is clear when we move to Bromsgrove. We have all agreed that Connie [the first respondent’s mother] and I will move with you and have our own separate accommodation in the family home which will be purchased there. Connie and I will provide the money for that house – about half each up to about £250,000 (but I shall have to sell this house first). As we both want to leave a “nest egg” for our Grandchildren we shall each leave our share in the house to them. Connie has already made a will like that and I will do the same when everything is settled. If I pass away in the meantime I want you and Roy to ensure that these arrangements are carried out as it is my profound wish that my dear Grandchildren have some security for their future.” 16. Be that as it may, a lease was granted to the respondents, on the 6 th September 1993 for a term of ten years and the annual rent reserved was £10,000 payable monthly in advance. However Clause 6 of the lease provided: “Said rent may with the agreement of the leasors be discharged in advance of the date herein before specified by the lessees paying for such works as improvement to the property as they may wish to undertake provided that the specification of all such works shall have been agreed by the parties hereto and the works shall have been carried out in a proper and workmanlike manner.” 17. 18. Between the date of the purchase of the property and the 17th January 1995, the documents which were disclosed indicated that works to the value of £73,412.12p had been carried out for, and paid for by the respondents. The story does not end there. Sometime in late 1994, the first respondent sought to raise the sum of £110,000 by way of mortgage on the property. The first documents in time seen by the judge indicated that the first respondent was representing that he 19. 20. 21. was owner of the property. However, the ultimate documentation which resulted in a mortgage to the Birmingham Midshires Building Society in the sum of £110,000 correctly identified the first respondent’s mother and his son Richard as the freehold owners. The first respondent signed a form of guarantee. The application form which resulted in the mortgage loan represented that the sum was for the purpose of home improvements. It would appear that in fact the loan was intended to, and did, pay off a debt owed by the first respondent of £100,000 to Sir Paul Judge, who had lent the first respondent that sum at a time when Sir Paul was the Director General of the Conservative Party. In relation to the first respondent’s attempts to explain these matters, the judge concluded: “I found Mr Thomason an unsatisfactory witness. He did not impress me as conscientious or truthful but to be willing to obfuscate as he found it necessary to obscure the nature of the transactions he had entered into.” The judge concluded that none of these matters, all of which were matters which should have been disclosed, had been disclosed. He rejected a suggestion that Sir Gerrard Neale had given sufficient relevant information to the appellants during the course of negotiations. He concluded that he was not satisfied that Sir Gerrard’s recollection was correct. As far as Carysfort Road and Rhetor 13 Ltd were concerned, the central complaint was that the respondents had not disclosed that the purchaser of the property, Rhetor 13 Ltd, was a company beneficially owned by a family trust. The judge, not surprisingly, concluded that this was a matter which should have been the subject of disclosure, but was not. He also concluded that the guarantee which the first respondent had provided to the Royal Bank of Scotland to continue to service the debts of another company with which he was concerned, Tateglass Ltd, should also have been disclosed. On the basis of those findings, the appellants submitted to the judge that they were entitled under the terms of the waiver agreement, to terminate the agreement on the basis that the respondents were in breach of a condition precedent, namely that they should have made full and frank disclosure of all matters that were not known to the bank and “might reasonably have been expected to affect the bank’s willingness to conclude this waiver”, to use the terms of the document itself. They accepted that the document had not been drafted as clearly as one would wish, but submitted that the intention of the document could clearly be established from its context. Mr Wonnacott on their behalf reminded the judge, and reminds us, of the well known words of Lord Hoffmann in his speech in Investors Compensation Scheme Ltd –v- West Bromwich Building Society [1998] 1WLR 896 at page 912 where he set out, beginning at H, the five principles which should be applied when considering the construction of a commercial agreement, which he submits are encapsulated in the speech of Lord Steyn in Sirius International Insurance Co (Publ) –v- FAI General Insurance Ltd & Ors [2004] UKHL 54, [2004] 1WLR 325, at paragraph 18, where Lord Steyn said: “The aim of the inquiry is not to probe the real intentions of the parties but to ascertain the contextual meaning of the relevant contractual language. The inquiry is objective: the question is what a reasonable person, circumstanced as the actual parties were, would have understood the parties to have meant by the use of the specific language. The answer to that question is to be gathered from the text under consideration and its relevant contextual scene.” 22. The essence of the appellants’ argument is that the phrase following the words “on the basis that” must have been intended to refer to the requirement made by the appellants that the respondents swear the third affidavit in which the paragraph to which I have referred in paragraph 10 above appears. Accordingly, as Mr Wonnacott stated in paragraph 4 of his skeleton argument and repeated orally before us: “But when the waiver agreement is read in the context of the third affidavit, it is in the Bank’s submission, clear what the intention must have been: The first part of the waiver is the contractual (1) equivalent of paragraph 3 of the third affidavit. It is a condition upon which triggers the rest. If Mr & Mrs Thomason have made full disclosure, then the waiver will apply; per contra if they have not. (2) the waiver. The second part is the operative provision containing (3) The third part is the contractual equivalent of paragraph 2 of the affidavit. It is a condition subsequent, which provides for defeasance in the event that there are (sic) further assets are discovered, whether or not Mr and Mrs Thomason knew about them.” 23. The judge, however, preferred the argument of the respondents to the effect that the agreement only provided for an express consequence in the event of the discovery of assets which had not been disclosed. Mr Leech had submitted, and submits to us, that the phrase “on the basis that” was therefore readily understood as merely being a recital of the circumstances giving rise to the agreement identifying the matters which were of materiality to the appellants when entering into the agreement. 24. The judge concluded in paragraph 45 of his judgement: “I have not found this an easy question, but it seems to me that the answer to the problem of construction is to be found in the following considerations: a. The proviso is not limited to matters of which Mr & Mrs Thomason have knowledge. On the contrary it relates to assets whether or not they are aware of them. b. To the extent to which such assets have not been disclosed and the Thomasons’ awareness of them, then the proviso is adequate to protect the Bank’s position. c. While the existence of fresh assets can readily be understood to be of interest to the Bank, it is difficult to see why, for example, the undisclosed existence of further liabilities should be advanced by the agreement as a condition precedent to the waiver of liability under the guarantee. It could, I suppose, be argued that in an ensuing insolvency the compromise with the Bank might conceivably be open to challenge in the event that there were substantial further liabilities. I do not regard that as a compelling contention. Nor is it clear to me why the disclosure of other matters which might reasonably be expected to affect the Bank’s willingness to conclude the waiver, in the sense that they might lead the Bank on a train of enquiry leading to further undisclosed assets need operate as a condition precedent to the waiver given the existence of the proviso. d. There is a strong suggestion the proviso is concerned with the future, while the clause beginning “on the basis that” is in the nature of a recital, setting out the Banks reasons for granting the waiver at that stage. The proviso sets a series of objective criteria for e. permitting the Bank to treat the waiver agreement as at an end. In contra distinction to this “bright line” test, the “on the basis” clause introduces into the consideration questions of fact and degree when anything other than assets and liabilities are to be considered. Finally it seems surprising that inadvertent non- f. disclosure of a material matter not relating to an existing asset should provide a possible basis for treating the agreement as at an end.” 25. Mr Wonnacott criticises the judge’s reasoning on the basis that it fails to give effect to the clear requirement imposed by the appellants that there should be a third affidavit in the terms to which I have referred. Because the respondents were effectively asking for release from a very substantial debt there is no reason why the appellants should not have insisted on absolute frankness and accordingly being entitled to treat the agreement as at an end even if the failure to disclose related to a relatively small matter. 26. 27. The problem with this argument, it seems to me, is that its necessary foundation is a conclusion as to the intention of the parties which both Lord Hoffmann and Lord Steyn explained was not the object of the enquiry. The agreement, expressing as it did the circumstances in which the parties had agreed contractually that it should be at an end, must sensibly be taken to have excluded any other eventuality. That seems to me to be the basis of the judge’s conclusion; and I consider that he was correct. However, that did not preclude the appellants from relying on any other principle of law which might entitle them to determine the agreement. It seems to me that Mr Leech is correct to accept that the phrase following “on the basis that” was indeed intended to identify the material upon which the appellants relied in order to enter into the agreement. It follows that the misrepresentations found by the judge entitled the appellants, even though they did not seek to persuade the judge that the misrepresentations were fraudulent, to rescission pursuant, and subject, to the provisions of the Misrepresentation Act 1967. Section 1 of that Act entitled the appellants to rescind the agreement for the non-fraudulent misrepresentations which they had established even though the contract had been performed. However, this right was subject to the provisions of Section 2(2) of the Act, which provide: “Where a person has entered into a contract after a misrepresentation has been made to him otherwise than fraudulently, and he would be entitled, by reason of the misrepresentation, to rescind the contract, then, if it is claimed in any proceedings arising after the contract, that the contract ought to be or has been rescinded the court or arbitrator may declare the contract subsisting and award damages in lieu of recession if of the opinion that it would be equitable to do so, having regard to the nature of the misrepresentation and the loss that would be caused by it if the contract were upheld, as well as to the loss that rescission would cause to the other party.” 28. The problem which presented itself to the judge in determining whether or not it would be equitable to declare the contract subsisting and award damages in lieu of rescission arose out of the way in which this issue was pleaded. The appellants, as I have already indicated, claimed the sum due under the guarantees, alternatively the same sum as damages, and “in so far as it be necessary” rescission of the waiver agreement. Those claims were based on paragraph 23 of the re-amended Particulars of Claim which reads: “By reason of the matters aforesaid, the terms of the waiver agreement do not now prevent the enforcement of the Guarantees. Alternatively if those terms do have that effect, UCB is entitled to avoid the waiver agreement by reason of the falsity of those representations; or to recover damages for breach of the waiver agreement in an equivalent sum.” 29. By their re-amended defence, the respondents clearly and specifically raised the issue of Section 2(2) of the Act. Paragraph 30 reads: “Even if, (which is denied) the defendants made material misrepresentations in their third affidavits which induced UCB to enter into the waiver agreement, it is denied that this is an appropriate case for rescission of the waiver agreement and averred that UCB should be limited to recovering damages equal to the increase (if any) in the amount which the defendants would have paid to UCB to secure the terms of the waiver agreement if those representations had not been made.” 30. This averment was not dealt with expressly in the appellants’ amended reply. It follows that the appellants’ case at trial, and this is confirmed by the documents before us, was that they were entitled to rescission; if the judge was minded to refuse rescission, the damages in lieu were the amount represented by the guaranteed sums. In support of the argument that the court should order rescission counsel for the respondents submitted to the judge and repeats the submission to us that the judge should take into account the serious nature of the misrepresentations which had been proved, on the basis that the misrepresentations were “multiple, intentional (though not fraudulent) and fundamental,” as Mr Wonnacott described them in his closing written submissions to the judge. He further submitted that when carrying out the balancing exercise to determine whether or not it would be equitable to order rescission, the judge was essentially balancing the benefit to the appellants of a judgment for the guaranteed sums against the detriment to the respondents of a judgment for the guaranteed sums, on the basis that that was what they would be liable to pay as damages in any event. His reasoning was, and again he repeated it to us, that the matter of damage was not affected by any assessment of the chances of the appellants obtaining some better result than they did had the truth been told, because the respondents’ insolvency was irrelevant. A defendant could never plead his own insolvency as a means of reducing damages. A claimant is entitled to judgment for the full sum without regard to the prospects of recovery. 31. Mr Leech on behalf of the respondents submitted to the judge that when determining whether or not rescission should be ordered, the loss to the appellants to which the 32. judge had to have regard under Section 2(2) of the Act was the loss which had been occasioned to the appellants by reason of the misrepresentation, and that that required an evaluation of the probable outcome if the full facts had been disclosed. That required, he submitted, an evaluation of the likely assessment by the appellants of their chances of obtaining more than £34,000, either by way of agreement after further negotiations, or as their dividend in the event of bankruptcy. He submitted that there was no evidence to show that the appellants would have been likely to have been able to obtain any further sums either by agreement or on bankruptcy and accordingly no loss had been established. He therefore submitted that it was a paradigm case for refusing rescission because of the draconian effect that that would have, compared on the other hand to the lack of any provable loss to the appellants by reason of the misrepresentation. The judge accepted the respondents’ arguments as to the proper approach to the issue under Section 2(2) of the Act. This involved considering, in particular, the evidence of Mr Rainer of the appellants, who gave evidence as to this part of the case. His evidence was that the appellants would not have entered into the waiver agreement had they known the true position. However he accepted that there would have been no point in not accepting the waiver agreement unless it appeared that there were assets which would have justified bankruptcy proceedings. He said that he would have tried to realise the Bromsgrove home on the basis that the transaction was one which might be unpicked, freeing more than the £100,000 which was the sum made available and upon which the waiver agreement was based. The judge described his evidence in this respect in the following terms: “This is less than compelling evidence that the decision would in fact have been any different if the full facts had been known”. 33. The judge therefore considered what the consequences would have been had the appellants not executed the waiver agreement. He concluded that they would undoubtedly have petitioned for bankruptcy quickly. But he concluded: “On the evidence before me there is no indication that there would have been a better recovery in bankruptcy, than that which the Bank in fact made.” 34. On that basis, the judge concluded that had the case been one of fraud, it would have been appropriate to disentangle the transaction. But since that allegation had been withdrawn, he concluded that: “it seems to me that the comparison I am required to make points inevitably to a refusal of the remedy of rescission together with the substitution in principle, of damages in lieu thereof. But, for the reasons I have given, I am not satisfied that in fact the damage occasioned by the misrepresentation is substantial. It follows, it seems to me that I must refuse the Bank the relief that it seeks. I will hear counsel on the appropriate orders.” 35. Mr Wonnacott on behalf of the appellants repeats before us the submissions that he made to the judge. Accordingly, he submits that the judge was wrong. He accepts that the judge was required by Section 2(2) to carry out the discretionary exercise of determining whether or not to grant rescission. He submits, however, that the judge erred in two fundamental respects. First, he submits that the judge did not at any stage in his judgment expressly take into account the nature of the misrepresentation which, as he said in his written closing submissions to the judge, were fundamental and that that should have formed an important and expressed part of the judge’s consideration of whether or not it would be equitable to allow the contract to be rescinded. Second, he submits that the judge was wrong in his approach to the assessment of the loss suffered by the appellants. He repeats the submissions he made below to the effect that the true loss is the amount of the guaranteed debt; alternatively, he submits that it was for the respondents to establish that there was no loss, and not for the appellants to establish loss. Prima facie, he submits, the appellants had suffered loss, namely the loss of the chance of obtaining more money had they been able to make further enquiries, or to exert further pressure on the respondents, and there was a real prospect that a trustee in bankruptcy would have been able to obtain more money had they not entered into the waiver agreement but proceeded to judgment in bankruptcy. The wording of the Act has been subject to considerable criticism, and legal and academic discussion. But it seems to me that the present case does not raise any of the difficulties for which the Act is notorious. Subject to the appellants’ argument that the judge failed to take into account the nature of the misrepresentation, the issue was whether or not the judge was correct to conclude that on the material before him there was no loss or no significant loss established by the appellants as a consequence of the misrepresentations. It was accepted, indeed submitted by both parties, that the mischief to which Section 2(2) of the Act was directed is described in the Law Reform Committee 10th Report (1962) Cmmd 1782, which was its genesis. The Committee was concerned that if rescission was permitted after a contract had been performed, that might result in injustice if rescission would cause hardship which was out of proportion to the loss occasioned by the misrepresentation. The question is therefore whether the judge was correct in coming to the conclusion that he did on the facts in relation to loss and then equating, as he clearly did, damages to the loss he had so identified. There is no magic to be attached to the word “loss”. It clearly includes financial loss. It seems to me to be capable, also, of including what might loosely be described as “detriment”. That is because the nature of the exercise required by the section is essentially a balancing exercise in order to determine what would be “equitable” in the circumstances. It follows that I would agree with the appellants to this extent that the judge would have been entitled to take into account a prospect of being able to obtain more money by reason of either further negotiations had the truth been told, or as a result of the activities of the Trustee in Bankruptcy if they had pressed ahead to judgment. If the judge considered that those chances were significant, even if not readily capable of valuation, that could have formed a basis for the exercise of his discretion in favour of permitting rescission. But the judge came to the opposite conclusion on the evidence before him. He was entitled, in my view, to do the best he could on the material he had. I do not therefore consider that his conclusion as to the loss which had been occasioned to the appellants by the misrepresentation can successfully be challenged. As the conclusion that he reached was that no loss was established, it seems to me that it was inevitable that he should conclude that the appellants had not established any damage. In coming to that conclusion, I consider that the judge was right to reject the appellants’ argument that in some way the damage was the full amount of the guaranteed debt. The submission that this necessarily follows from the fact that a defendant’s impecuniosity cannot affect the measure of damage is fallacious. Clearly that principle applies where the question is the price of goods or services, or the damages payable as a result of an established loss. But the latter immediately exposes the fallacy. The loss in the present case was correctly identified by the judge as being the lost chance of obtaining more money had the appellants been told the truth. The financial health of the respondents was a critical factor in evaluating that lost chance. It follows that an assessment of the prospects of obtaining more in the light of the 36. 37. 38. respondents’ financial position was a necessary part of the judge’s task in order to determine the loss occasioned by the misrepresentation, and the damage flowing from it. 39. The only concern which I have about the judge’s decision is that Mr Wonnacott is correct to say that the judge does not deal expressly with the “nature” of the misrepresentation when carrying out the discretionary exercise under Section 2(2) of the Act. I would accept Mr Wonnacott’s description of the misrepresentation as being “multiple, intentional (though not fraudulent) and fundamental” as I have already related. But no one can read the judgment without appreciating that the judge was fully aware of those matters; and his strictures in relation to the respondents’ evidence and behaviour ring out loud and clear in the passages that I have quoted. In these circumstances, I am not persuaded that the judge’s exercise of his discretion was flawed because he did not expressly deal with this aspect. 40. For these reasons, and with the same lack of enthusiasm that the judge felt for dismissing the claim, I would dismiss this appeal. Lord Justice Neuberger: 41. I agree Lord Justice Brooke: 42. Mr and Mrs Thomason (“the Thomasons”) were not the only people to lose money in the collapse of the property market in the late 1980s. He was therefore financially embarrassed when he became Conservative MP for Bromsgrove at the 1992 General Election. He wished to live in his constituency, but he and his wife had no means of buying a house there from their own resources. 43. Their two widowed mothers, however, evinced a willingness to sell their own homes and use the sale proceeds to buy a house in the constituency where they would all live. They would let the Thomasons rent part of it as their country home. The trustees of a trust established by Mr Thomason’s father were also willing to contribute to the purchase price of the new home. In due course a suitable house was found and purchased in the names of Mr Thomason’s mother and the Thomasons’ eldest son Richard. On the day in June 1993 when the sale was completed at a total cost of about £240,000 its two owners executed a declaration of trust to the effect that they held the house on trust as to 75 of 241 parts for Mr Thomason’s mother and as to the balance on trust for such of the Thomasons’ then children as attained the age of 25. 44. Mrs Thomason’s mother did not feature in these arrangements because she had died the previous November. Two months earlier she had written a letter to her daughter, whose authenticity was not questioned, in which she described their plans and said that she and Mr Thomason’s mother would provide the money for the new house – about half each – up to about £250,000. They both intended to leave their share in the house to their grandchildren. Mr Thomason’s mother had already made a will to that effect, and she intended to do the same when everything was settled. If she died in the meantime, she wished the Thomasons to ensure that these arrangements were carried out. 45. In the absence of any new will to this effect her daughter became her residuary legatee on her death, and in the event it appears that her estate contributed about 46. 47. £137,000 towards the purchase price of the new house. The balance of £107,000 came from Mr Thomason’s side of the family (as to £75,000 from his mother, who came to live in the house, as planned, and as to £32,000 from his father’s trust). The Thomasons were granted a lease of the west wing at a rent of £10,000, but in the event they took advantage of a provision in the lease which enabled them to carry out agreed improvements to the west wing in lieu of rent. It is not easy to understand how the Thomasons could have failed to realise that the Bank would have wished to have known about these arrangements, and to have had the opportunity to inquire into them, before it agreed to release them from their massive liabilities. In particular the Bank would have wished to take advice about the beneficial ownership of Mrs Thomason’s mother’s residual estate at the time of her death. The judge found that Mr Thomason had been guilty of a lamentable failure to be frank with the Bank. This finding was fully justified. By the time of the trial, however, the Bank had withdrawn its contention that the Thomasons’ misrepresentation had been fraudulent. This concession deprived it of a straightforward way of insisting that the waiver should be rescinded without having to enter into a dispute about what it had lost as a result of the misrepresentation. This was not a contract of insurance, so that the Bank could not rely on the general law to enable it to avoid the waiver once it had proved a material misrepresentation or non- disclosure. And I agree with Latham LJ that the terms of the waiver document did not give it any express power to rescind the waiver in the events that occurred. 48. In these circumstances, once the judge found the non-fraudulent misrepresentation proved, he had to apply section 2(2) of the Misrepresentation Act 1967 to the case as advanced to him by the parties. The critical words of that sub-section are these: “…if it is claimed…that the contract ought to be or has been rescinded the court…may declare the contract subsisting and award damages in lieu of rescission, if of opinion that it would be equitable to do so, having regard to the nature of the misrepresentation and the loss that would be caused by it if the contract were upheld, as well as to the loss that rescission would cause to the other party.” 49. The Thomasons raised this issue in their defence. The judge therefore had three matters to weigh up: the nature of the misrepresentation; i) ii) the loss that would have been caused to the Bank by the misrepresentation if the waiver agreement stood; iii) the loss that the rescission of the waiver agreement would cause to the Thomasons. 50. So far as i) was concerned, this was a non-fraudulent misrepresentation to the effect that there was nothing else the Bank might wish to know before it agreed to grant the waiver. In its “skeleton opening” at the trial (but not on its statement of case) the Bank described the misrepresentation as “multiple, intentional (though not fraudulent) and fundamental). So far as iii) was concerned, it was common ground that the Thomasons would face a massive liability if the waiver was rescinded. What was critical to the resolution of the case was item ii), because if the Bank could not establish a compelling case under ii), arguments about the nature of the misrepresentation would fall away. In any event the judge’s robust findings show that he deplored the nature of the misrepresentation. 51. 52. 53. The Thomasons’ case (see para 30 of the Defence) was that all the Bank would have lost by the misrepresentation would have been the extra amount (if any) it would have paid to secure the terms of the waiver agreement if the misrepresentation had not been made. The Bank made no positive response to this case: see para 1 of the Reply. On its statement of case the only loss it claimed was the total amount outstanding on the guarantee agreement, as if the whole purpose of the waiver agreement had not been to replace this paper liability which was hardly worth the paper it was written on with what would be literally money in the bank. This claim was repeated in paragraph 81 (3) of the skeleton opening. In the absence of any more realistic contention it is hardly surprising that the judge decided to adopt the conventional approach to damages which was to assess whether the Bank would have been any better off if it had forced the Thomasons into bankruptcy in January 1997 than it was as a part beneficiary of a voluntary loan from Mr Thomason’s mother. On the evidence and the arguments adduced to him at the trial I cannot fault the conclusions he reached. For the purposes of this judgment I have ignored the other misrepresentation which would have had a minimal effect on the outcome. 54. I, too, would therefore dismiss this appeal.