Al-Hasawi v Nottingham Forest Football Club Ltd & Ors

An entire agreement clause does not exclude liability for misrepresentation merely because the contract contains detailed provisions governing particular contractual claims. Clear wording is required to exclude non-contractual claims. Words such as “supersedes” and “extinguishes” may remove prior statements’ contractual effect without removing their status as actionable misrepresentations. The contract must be construed as a whole, but the court must not improve the parties’ bargain by implying exclusions that the language does not support.

NF Football Investments Ltd appealed against an order of Master Bowles, reported at [2018] EWHC 1346 (Ch), granting summary judgment to NFFC Group Holdings Ltd and striking out a claim under section 2 of the Misrepresentation Act 1967.

The dispute arose from a share purchase agreement under which the Buyer acquired Nottingham Forest Football Club Ltd. The agreement contained detailed indemnities concerning the Club’s liabilities and an entire agreement clause stating that the agreement superseded and extinguished prior discussions, assurances and representations. The central issue was whether that clause excluded a statutory misrepresentation claim based on information supplied before completion.

1. Appeal allowed. The entire agreement clause did not exclude the Buyer’s claim under section 2 of the Misrepresentation Act 1967.

2. The agreement had to be construed as a whole by an objective assessment of the language used in its contractual context. It was legitimate to consider the detailed indemnity provisions and to infer the parties’ objective intention. However, contractual provisions addressing particular claims did not, without more, imply that all other causes of action were excluded.

3. The court applied the approach in Axa Life Services Plc v Campbell Martin Ltd and others [2011] EWCA Civ 133. Exclusion of liability for misrepresentation required clear wording. A clause concerned with the contractual effect of prior statements did not necessarily address their status as misrepresentations or exclude tortious or statutory remedies.

4. The contractual indemnities dealt with liabilities and related matters, whereas the misrepresentation claim could concern other information, including assets. The fact that the pleaded claim substantially overlapped with one contractual indemnity was therefore insufficient. The court could not insert a term making the contractual claims the exclusive remedies merely because that arrangement might be commercially sensible.

5. The words “supersedes” and “extinguishes” did not establish the necessary exclusion. In context, they removed any prior contractual effect of the representations but did not negate them for all purposes. Clause 20, preserving rights and remedies unless expressly excluded, provided further support for that conclusion.

1. High Court (Chancery Division): HHJ David Cooke allowed NF Football Investments Ltd’s appeal against the order of Master Bowles.
2. Master Bowles: On 6 June 2018, the Master granted summary judgment to NFFC Group Holdings Ltd and struck out the claim under section 2 of the Misrepresentation Act 1967: [2018] EWHC 1346 (Ch).