Cotton v Enterprise Inns Plc

A valid entire-agreement clause may prevent reliance on antecedent oral or implied representations in a later misrepresentation claim. A claim based on misrepresentation also fails where the claimant cannot establish loss caused by it. Evidence that entertainment took place, or that entertainment equipment appeared in business records, does not by itself establish that premises held a public entertainment licence or that a representation about one was false. Permission to appeal should be refused where the proposed new material does not disclose an arguable error in the lower court’s findings.

The applicant tenant claimed damages against Enterprise Inns Plc following a tenancy of the Buzz Bar in Hull. He alleged misrepresentations about weekly takings and a public entertainment licence, and an agreement that Enterprise Inns would reimburse works to the premises. The Kingston-upon-Hull County Court dismissed the claim, gave judgment for Enterprise Inns on its counterclaim for rent and trade invoices, and ordered the applicant to pay costs. The applicant sought permission to appeal, alleging perjury, illegal trading, that the contract was void, and relying on further documents. The central issue was whether those matters disclosed an arguable basis for appellate intervention.

The application for permission to appeal was dismissed.

1. The further documents did not establish an arguable error concerning the alleged public entertainment licence. References to entertainers, entertainment and entertainment equipment showed at most that entertainment was being provided. They did not demonstrate that the premises lacked a licence or that Mr Gifford had knowingly lied about one.
2. The Recorder’s conclusions on the alleged misrepresentations and the reimbursement agreement were findings open to her on the evidence. In relation to the weekly takings, she was unsure whether the representation had been made and was not satisfied that it had been relied upon. In relation to the licence, she considered that the representation might have been made, but found no resulting loss.
3. In any event, clause 23.3 operated to exclude reliance on antecedent oral, written or implied representations. The application contained no suggestion that this was an invalid contractual provision. The Recorder had also considered it reasonable having regard to the Unfair Contract Terms Act 1997.
4. The alleged agreement to reimburse all works costs was found implausible and unsupported by invoices. The Recorder was not satisfied that those expenses formed part of the parties’ contract. The grounds alleging perjury, illegal trading and that the contract was void did not identify an arguable basis for disturbing those conclusions.

The County Court’s judgment on the claim and counterclaim, together with its costs order, therefore stood.

1. Court of Appeal (Civil Division): On 10 October 2002, Lord Justice Laws dismissed the application for permission to appeal.
2. Kingston-upon-Hull County Court: Mrs Recorder Stocken dismissed the claim for damages for breach of contract and misrepresentation, gave judgment for Enterprise Inns Plc on its counterclaim, and ordered the applicant to pay costs.