Fowler v Commission For New Towns

Permission to appeal should be refused where the proposed appeal merely challenges factual findings which the trial judge was entitled to make and discloses no error of law. Commercial forecasts and publicity materials do not necessarily create contractual obligations or a duty of care, particularly where the claimant possesses relevant expertise and is expected to make an independent commercial judgment. Sympathy for financial loss cannot itself found a private-law cause of action. A government-sponsored body's public statements may need to be accurate and properly justified, but that principle does not, without more, create a private-law cause of action through legitimate expectation.

Roger Owen Fowler claimed damages against the Commission for the New Towns, formerly acting through the Merseyside Development Corporation, arising from the failure of a proposed marina development at Liverpool South Docks. He relied on alleged representations concerning the feasibility and wider development of the marina, advancing claims for breach of collateral warranty and misrepresentation, including negligent misstatement.

His Honour Judge Hedley dismissed the claims on the grounds that the representations were forecasts, that Mr Fowler had relevant expertise and was expected to make his own commercial judgment, and that reliance and causation were not established. The judge also rejected the contention that the surrounding development caused the marina's failure. Mr Fowler sought permission to appeal, challenging those factual findings and asserting a legitimate expectation that the respondent's public pronouncements would be credible.

1. Application refused. The proposed appeal had no real prospect of success.
2. The trial judge's findings on reliance and causation were findings of fact based on the evidence. The Court of Appeal could not properly interfere with them, and the judge was fully entitled to reach those conclusions.
3. No error of law appeared in the trial judge's reasoning. The judge was entitled to conclude that the relevant documents and statements were forecasts or publicity and planning materials, rather than contractual promises. He was also entitled to find that Mr Fowler's expertise meant that the respondent could expect him to make his own commercial assessment, rather than rely on the respondent's statements as advice.
4. The judge was entitled to reject negligent misstatement. The evidence did not establish that the respondent had reason to believe Mr Fowler would rely on its advice instead of his own expertise and that of professional advisers, nor did it establish a voluntary assumption of responsibility.
5. There was substance in the general proposition that a government-sponsored body should ensure that its public pronouncements are accurate and do not exceed what the circumstances justify. That proposition did not provide a basis for a private-law cause of action founded on legitimate expectation. In any event, the factual findings defeated its application in this case.
6. Sympathy for Mr Fowler's financial predicament could not create legal liability. Permission to appeal was therefore refused.

• Court of Appeal (Civil Division): Permission to appeal from the order of His Honour Judge Hedley was refused.
• High Court, Chancery Division, Liverpool District Registry: The claim was dismissed on 22 February 2001, and permission to appeal was refused.