NF Football Investments Ltd & Anor v NFFC Group Holdings Ltd & Anor

An entire agreement clause may exclude statutory misrepresentation even if it does not use a conventional formula. The question is one of construction, assessed in the context of the agreement as a whole. Clear wording is required, but no particular form is mandatory. Broad language extinguishing previous representations, combined with contractual indemnities and notification procedures dealing comprehensively with the relevant subject matter, may show that the parties intended claims to be pursued only within the contractual framework. A clause preserving rights and remedies provided by law does not preserve a statutory misrepresentation claim where the entire agreement clause expressly excludes it.

NF Football Investments Limited and Nottingham Forest Football Club Limited claimed substantial sums from NFFC Group Holdings Limited and Fawaz Al-Hasawi under a share purchase agreement for the Club.

NF alleged that a spreadsheet in the virtual data room misstated the Club’s liabilities and advanced a statutory misrepresentation claim under section 2(1) of the Misrepresentation Act 1967. NFF relied on the agreement’s indemnities, claims procedures and entire agreement clause. The central issue was whether clause 12 excluded the statutory claim, notwithstanding clause 20, which preserved rights and remedies provided by law unless expressly excluded.

1. Construction of entire agreement clauses. The effect of such a clause is determined by construing its language in the context of the particular agreement. Clear exclusion of liability for misrepresentation is required, but no prescribed wording or formula is legally necessary.
2. Guidance from AXA. AXA Sun Life Services Plc v Campbell Martin Ltd and Others [2012] Bus. LR 203 provided helpful guidance that exclusion of misrepresentation liability should be clearly stated and that conventional formulations are commonly used. It was authority only for construction of the particular clause there considered. The present clause was materially different.
3. Application to clause 12. The agreement established indemnities, notification requirements, limitation periods and other contractual machinery for claims concerning liabilities, material contracts and new obligations. That contractual matrix supported the conclusion that disputes arising under or in respect of the agreement were intended to be dealt with within its contractual framework.
4. The wording of clause 12 was deliberately broad. It extinguished previous discussions, correspondence, negotiations, drafts, agreements, promises, assurances, warranties, representations and understandings. The word “representations” was not confined to contractual representations. Its ordinary legal meaning included factual statements of a non-contractual nature, and the reference to extinguishing representations was apt to negate previous factual statements.
5. Clause 20 did not preserve the statutory misrepresentation claim. It remained relevant to claims of a different nature, but clause 12 expressly excluded claims based on prior representations. The claim therefore had no realistic prospect of success and was struck out as doomed to failure. Part 24 judgment was given for NFF on that claim.

Not stated in the judgment.