England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBENI 97/1438/B

COURT OF APPEAL (CIVIL DIVISION) QBENI 97/1517/B

(His Honour Judge Cyril Newman QC) Royal Courts of Justice

Strand, London WC2

Tuesday, 9th December 1997

B e f o r e :

THE VICE-CHANCELLOR

(Sir Richard Scott)

LORD JUSTICE ALDOUS and

SIR PATRICK RUSSELL

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STRACHAN & HENSHAW LIMITED Plaintiff

(Respondent)

-v-

(1) STEIN INDUSTRIE (UK) LIMITED Defendants

(2) GEC ALSTHOM LIMITED (Appellant)

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Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited

180 Fleet Street London EC4A 2HD

Tel: 0171 421 4040 Fax: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR P TWIGG QC and MR D ROYCE (instructed by Messrs Pinsent Curtis, Birmingham) appeared on behalf of the Appellant Defendants.

MR S FURST QC and MR M BOWDERY (instructed by Messrs Hammond Suddards, Leeds) appeared on behalf of the Respondent Plaintiff.

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J U D G M E N T

(As Approved by the Court)

Crown Copyright

Tuesday, 9th December 1997

THE VICE-CHANCELLOR: This is an appeal by Stein Industrie (UK) Limited ("Stein UK") and GEC Alsthom Limited ("GECAL") on two points of law arising in an arbitration. The appeal is from the judgment of His Honour Judge Cyril Newman QC given on 22nd July 1997. The judge was hearing an appeal from an Interim Award on liability by the arbitrator, Mr J A Tackaberry QC, dated 14th May 1996. Leave to appeal had been granted by an order dated 4th December 1996 made by His Honour Judge Humphrey Lloyd QC.

The arbitration arose out of works carried out under a sub-contract relating to the construction of a Combined Cycle Gas Turbine Power Station at Little Barford, St Neots, Cambridgeshire. The employer for whom the construction works were being carried out is National Power plc. The main contractor is GEC Alsthom Power Plant Limited. The appellants, Stein UK and GECAL, are subcontractors. They have, in turn, subcontracted to Strachan & Henshaw Limited ("S&H") work relating to erection services and commissioning and support work in respect of Heat Recovery System Generators ("HRSGs"). The "Contract" between Stein UK and GECAL on the one hand and S&H on the other hand consisted of a number of associated contractual documents.

The work to be done by S&H under the Contract required it to employ a number of workmen - about 150, we have been told. Arrangements had to be made by S&H for the provision of facilities for its workmen to clock-in and clock-out and for the provision of cabins where its workmen could take their daily tea break. Initially S&H erected the tea cabins in close proximity to the part of the construction site where the HRSGs on which its workmen would be working were located. It desired to install a clocking station in the same area. The desirability, from S&H's point of view, of having the clocking station and the tea cabins as near as possible to the workplace is obvious. A close juxtaposition minimises productivity losses occasioned by "walking time", i.e. the time taken by the workmen to walk between the clocking station and their workplace and between the tea cabins and their workplace.

The pre-Contract discussions that took place between the parties included discussion about the place or places where the clocking station and the tea cabins would be sited. The arbitrator made the following findings about this in paragraph 48 of his Award:

"... the key issue is whether Mr Snudden said anything about the positioning of the tea cabins and clocking station at the site. I have carefully considered the evidence that I have heard and I am firmly of the view that the GECA-PPG side (probably in the person of Mr Snudden, but certainly supported by Mr Baker) agreed that the clocking stations would be on site (after all this was what the management group meeting had concluded on the 13/MAY/1993 - see paragraph 42 above); and also agreed in principle to the Strachan tea cabins being stationed on the site, subject to finding a suitable place for them. Responsibility for seeking out such a suitable place was to be Strachan's. ... It was accordingly agreed that the precise position would be one of a number of matters which were to be discussed at a follow up meeting between Mr Snudden and Strachan at site ..."

The Contract was concluded in June 1993. Stein UK's letter of acceptance of S&H's tender was dated 7th June 1993.

Following the conclusion of the Contract, and after some apparently inconclusive further discussions about the siting of the tea cabins and clocking station, S&H had tea cabins delivered to the site and installed close to the HRSGs. But it seems that further meetings took place as a result of which the main contractor, GECA-PPD, gave instructions that the tea cabins were to be removed from the place near the HRSGs where they had been installed. S&H complied with this instruction and re-installed the tea cabins in a compound some half a mile from the HRSGs. The clocking station, too, was installed in the compound. The distance of half a mile or thereabouts between the tea cabins and clocking station and the HRSGs has naturally led to much greater walking time than would have been required had they been located close to the HRSGs. S&H have calculated that this additional walking time has cost them £1.6m or thereabouts. This is a figure which is in dispute, but that is the claim. S&H have made a claim to recover this sum. It is this claim that was referred to the arbitration before Mr Tackaberry QC.

S&H have put their claim on a number of alternative footings. First, it is contended that under the Contract S&H were contractually entitled to install the tea cabins and clocking station close to the HRSGs. The instruction which led to the removal of the tea cabins from their original location and to the installation of the tea cabins and the clocking station in the compound half a mile away was, it is contended, a "variation" of the Contract for the purposes of Condition 27 of the MF/1 General Conditions which formed part of the Contract.

The first of the two issues of law to be decided on this appeal is whether, as a matter of construction, Condition 27 does apply to the case. The arbitrator held that it did not. His Honour Judge Newman disagreed. He held that it did. If Judge Newman is right, then, provided S&H did have the contractual entitlement for which they contend (and subject to a point about waiver which I will refer to again later), it is accepted that S&H is entitled to monetary compensation.

If, however, Condition 27 of the General Conditions does not apply to the case, S&H contend, in the alternative, that the instruction given by GECA-PPD constituted a breach of contract for which damages can be claimed. The appellants' answer is that Condition 44.4 of the General Conditions bars such a claim for damages. The appellants contend, also, that S&H had no contractual entitlement to have the tea cabins and clocking station installed near to the HRSGs. So, in case that might be correct, S&H have a further string to their bow. They contend that it was represented to them that they could locate the tea cabins and clocking station near to the HRSGs and that, in the circumstances, they can claim damages for misrepresentation under the Misrepresentation Act 1967. But the appellants, besides denying that there was any actionable misrepresentation, rely on Condition 44.4 as barring the claim for damages for misrepresentation, just as it bars, they contend, the claim for damages for breach of contract.

On this point, namely, whether Condition 44.4 barred the damages claims, the arbitrator found in favour of the appellants. Having held that the instruction to locate the tea cabins and the clocking station in the compound did not constitute a "variation" for Condition 27 purposes, he held that Condition 44.4 barred the damages claims. On this point, too, His Honour Judge Newman took a different view. He held that Condition 44.4, on its true construction in the context of the Contract as a whole, did not bar S&H's breach of contract claim. The judge did not find it necessary to deal with the question whether the condition would have barred a damages for misrepresentation claim.

As to various subsidiary issues that arose:

i) The arbitrator held that S&H were contractually entitled under the Contract to have the tea cabins and clocking station near to the HRSGs. But, in view of his conclusion about the scope of Condition 44.4, he held that S&H could not claim damages for breach of that contractual entitlement. The judge agreed with the arbitrator on the contractual entitlement point.

ii) The arbitrator held that assurances given to S&H in pre-Contract meetings to the effect that the tea cabins and clocking station could be placed near to the HRSGs constituted representations of fact. The judge rejected the appellants' objection that the arbitrator had made no finding capable of supporting the conclusion that there had been a representation of fact, as opposed merely to a promise or statement of intention. The judge appears to have thought that it was not open to him to examine the basis of the arbitrator's decision on this point. He said:

"Whether or not that was the basis of the arbitrator's decision is a question of fact not open to me to enquire into further."

iii) The appellants contended that S&H's claims were, in any event, barred on the ground that they had not been put forward in due time as required by the Contract. S&H's response was that the appellants had by conduct waived any reliance on the time point. The arbitrator agreed with the waiver response. So did the judge.

iv) Finally, a point was taken before the judge that, unlike S&H, the appellants had not applied for or been given leave to appeal against the arbitrator's Award. The appellants sought before the judge to uphold the Award, even if they should lose on the two points of law regarding Conditions 27 and 44.4 of the General Conditions, by alleging that the arbitrator had erred in law, first, in concluding that S&H had the contractual entitlement they claimed, second in concluding that the assurances given constituted representations of fact and, third, in concluding that the appellants had waived reliance on the time objection. The judge held that leave to appeal on these points had not been necessary since the appellants were, before him, simply in a defensive posture seeking to uphold the Award. But he found against them on all three points anyway.

Before us, all these points are alive. However, after hearing Mr Twigg QC, for the appellants, on the Condition 27 and Condition 44.4 points, we invited Mr Furst QC, for S&H, to reply on those points. If Mr Twigg is right on those two points, there is nothing left in the appeal.

With that rather tedious introduction, I must now return to the Contract. It consists, as I have said, of a number of documents assembled together. One of these documents is the MF/1 General Conditions, whose full title is:

"MODEL FORM OF

GENERAL CONDITIONS OF CONTRACT

INCLUDING FORMS OF TENDER, AGREEMENT, SUB-CONTRACT AND PERFORMANCE BOND

Recommended by

The Institution of Mechanical Engineers

The Institution of Electrical Engineers

and

The Association of Consulting Engineers

For use in connection with

HOME OR OVERSEAS CONTRACTS - WITH ERECTION

1988 EDITION"

There were, also, Special Conditions constituting amendments to the General Conditions and directed specifically to the Contract to be entered into between these parties.

Paragraph 4.1 of the General Conditions is of some importance to the arguments that have been addressed to us. As amended by the Special Conditions, it provides as follows:

"Unless otherwise provided in the Contract the Conditions as amended by the Letter of Acceptance shall prevail over any other document forming part of the Contract and in the case of conflict between the General Conditions and the Special Conditions the Special Conditions shall prevail.

Subject thereto the order of documents shown within the Schedule of Enquiry Documents will prevail."

The "Schedule of Enquiry Documents" mentioned in the amended Condition 4.1 lists the following documents in the following order:

"1. INSTRUCTIONS TO TENDERER

2. FORM OF TENDER with attached Appendix (3 Parts)

3. MODEL FORM OF GENERAL CONDITIONS OF CONTRACT (or MF/1)

4. SPECIAL CONDITIONS (in 2 Parts)

5. TECHNICAL FILE (in 9 Documents)"

Prima facie, the effect of General Condition 4.1, as amended, is that the General Conditions, subject to the Special Conditions, prevail over the Instructions to Tenderer, the Form of Tender and the nine documents comprising the Technical File. There are, however, a great many other documents assembled together as part of "the Contract". One of these is a manuscript document recording pre-Contract discussions which took placed on 2nd April 1993 about, among other things, General Condition 4.1. The manuscript, in its relevant part, reads as follows:

"Precedence of Documents (clause 4.1)

Schedule of Enquiry Documents is clarified

Special Conditions from 4th to 3rd position

MF1 from 3rd to 4th position"

That clarification was not strictly necessary. The effect of General Condition 4.1 is, clearly, that in case of conflict between the Special Conditions and the General Conditions, the Special Conditions must prevail. But I suppose that, in view of the order in which the Special Conditions and General Conditions were placed in the Schedule of Enquiry Documents, the clarification may have been sensible. Mr Furst submitted that the effect of the order of precedence shown in the Schedule of Enquiry Documents was that the Instructions to Tenderer would prevail, in case of conflict, over the General Conditions and Special Conditions. That submission ignores, in my opinion, the words "subject thereto" which precede the second sentence of Condition 4.1, as amended. In my judgment, the Special Conditions and General Conditions prevail.

I must now turn to the Condition 27 issue. Does the instruction given to S&H requiring the tea cabins and clocking station to be sited in the compound half a mile away from the workplace constitute a "variation" for Condition 27 purposes?

It is necessary to point out that, in considering this question, three assumptions must be made. First, it must be assumed that S&H is contractually entitled under the Contract to have the tea cabins and clocking station located close to the workplace. Second, it must be assumed that the instruction given to S&H was an instruction that S&H was contractually obliged to comply with. Third, it must be assumed that the compliance by S&H with the instruction resulted in additional labour costs being incurred by them. Each of these assumptions is disputed by the appellants. But, for the moment, let it be assumed that each is correct.

In General Condition 27 "variation" is defined in sub-paragraph 1 as follows:

"In these Conditions the term ´variation' means any alteration of the Works whether by way of addition, modification or omission."

Sub-paragraph 2 of Condition 27 has the side-heading "Engineer's Power to Vary". Its only relevance for present purposes is that, as amended, it includes the following provision:

"The Contractor shall afford the Purchaser the opportunity to consider the Contractor's proposals to vary the Works where there is a financial or programming advantage for the Purchaser. These proposals include methods of working, use of new technology, economic use of shared facilities, etc. and shall not prejudice the Contractors intellectual property rights."

The expression "the Works" is defined in Condition 1.1.p:

"´Works' means all Plant to be provided and work to be done by the Contractor under the Contract."

"The Contract" is defined in Condition 1.1.g:

"´Contract' means the agreement between the Purchaser and the Contractor (howsoever made) for the execution of the Works including the Letter of Acceptance, the Conditions, Specification and the drawings (if any) annexed thereto and such schedules as are referred to therein and the Tender."

"Plant" is defined in Condition 1.1.o as meaning:

"... machinery, computer hardware and software, apparatus, materials, articles and things of all kinds to be provided under the Contract other than Contractor's Equipment."

The definition of "Plant" cannot be read as including S&H's workforce. So S&H is obliged to contend that the instruction constituted an alteration in "work to be done by the Contractor under the Contract". The arbitrator held that the instruction was not an alteration, but he did not set out his reasoning (see paragraph 124 of the Award). The judge came to the opposite conclusion. He noted that the expression "Works" included the "work to be done by the Contractor under the Contract" and he said:

"I do not see that the work to be done by the contractor has necessarily to be limited to the work actually applied to the plant at the workface."

As to this, it is accepted by the appellants that the judge was correct. The "work to be done by the Contractor under the Contract" would include, for example, the delivery of requisite materials to the workplace. But it does not follow that the installation of tea cabins and the clocking station can be described as "work to be done by the Contractor under the Contract". The judge said that he could:

"... see no reason why if the labour is directly affected by a direction in its carrying out of the various activities necessary under the Contract so that delay and expense are occasioned by that, that should not be a variation of the Works as defined in that part of the definition which relates to the ´work to be done by the Contractor under the Contract'."

He expressed the conclusion that:

"... the work to be done by the contractor should include getting his workforce from the clocking-in cabin to the workface and away again for the statutory rest periods."

Mr Twigg has submitted that the judge fell into error in confusing S&H's construction contract with the appellants with S&H's employment contracts with the members of its workforce. "The Contract" referred to in the definition of "Works" is the contract "for the execution of the Works". It is the work to be done under the Contract, as defined, that must be altered if the Condition 27 "variation" provisions are to come into effect. An instruction that affects the location of the tea cabins and the clocking station and consequently increases the walking time of S&H's employees does not thereby alter the work to be done by S&H under the Contract with the appellants. That work remains unaltered.

I agree with this analysis. It seems to me to be consistent with the language of Condition 27, as amended, taken as a whole. The judge placed some reliance on the terms of the provision that was added by amendment to Condition 27.2. I have cited the provision and need not repeat the citation. The provision makes clear that "proposals to vary the work" may include "methods of working, use of new technology" etc. The provision is, in my opinion, neutral in the present argument. A variation in methods of working or a use of new technology might well lead to some alteration in the work to be done under the Contract, but would not, in my view, constitute on its own such an alteration.

In my view the "work to be done by the Contractor under the Contract" means simply what it says and should not be distorted so as to encompass the arrangements made by the contractor to bring its workforce to the workplace (see Photo Production Limited v Securicor Transport Limited [1980] AC 827 per Lord Diplock at pp.850 and 851).

On this issue the arbitrator, in my judgment, came to the correct conclusion and I would allow the appeal on this point.

I now turn to the Condition 44.4 point. Condition 44.4 is part of a section of provisions headed "Limitations of Liability".

44.1 imposes an obligation on a party alleging a breach of contract:

"... to take all necessary measures to mitigate the loss which has occurred provided that he can do so without unreasonable inconvenience or cost."

This, therefore, is a contractual substitute for the common law rules on mitigation.

44.2 contains a limitation on the right of either party to claim indirect or consequential damage. Subject to exceptions that I need not take time to recite, 44.2 provides:

"... neither the Contractor nor the Purchaser shall be liable to the other by way of indemnity or by reason of any breach of the Contract or of statutory duty or by reason of tort (including but not limited to negligence) for any loss of profit, loss of use, loss of production, loss of contracts or for any financial or economic loss or for any indirect or consequential damage whatsoever that may be suffered by the other."

This, too, is a contractual substitute, replacing the common law rules on remoteness of damage.

44.3 provides:

"In no circumstances whatsoever shall the liability of the Contractor to the Purchaser under the Conditions for any one act or default exceed the sum stated in the Appendix or if no sum is so stated, the Contract Price. The Contractor shall have no liability to the Purchaser for or in respect or in consequence of any loss or damage to the Purchaser's property which shall occur after the expiration of the Defects Liability Period except as stated in Sub-Clause 36.10 (Latent Defects)."

The Defects Liability Period is a period of three years. This provision constitutes a potentially drastic limitation on the quantum of damages that might have been available at common law.

Finally, 44.4 provides as follows:

"The Purchaser and the Contractor intend that their respective rights, obligations and liabilities as provided for in the Conditions shall be exhaustive of the rights, obligations and liabilities of each of them to the other arising out of, under or in connection with the Contract or the Works, whether such rights, obligations and liabilities arise in respect or in consequence of a breach of contract or of statutory duty or a tortious or negligent act or omission which gives rise to a remedy at common law. Accordingly, except as expressly provided for in the Conditions, neither party shall be obligated or liable to the other in respect of any damages or losses suffered by the other which arise out of, under or in connection with the Contract or the Works, whether by reason or in consequence of any breach of contract or of statutory duty or tortious or negligent act or omission."

The claim made by S&H, whether it is regarded as a claim for damages for breach of contract or a claim for damages under the 1967 Act for misrepresentation, is, in my judgment, unquestionably a claim "arising ... in connection with the Contract ... "

Mr Furst argued that the words "whether such rights, obligations and liabilities arise in respect or in consequence of a breach of contract or of statutory duty or a tortious or negligent act or omission" were words of limitation, restricting the rights, liabilities and obligations to which the Condition was referring to rights, obligations and liabilities arising in respect or in consequence of a breach of contract or of statutory duty or a tortious or negligent act or omission. I do not so read the paragraph. In my judgment the words are words not of limitation, but of exemplification. They do not, in my judgment, cut down the comprehensive scope of the words "rights, obligations and liabilities arising ... in connection with the Contract". The only materiality of this point is in relation to S&H's alternative claim based on innocent misrepresentation. A claim for damages for innocent misrepresentation is not a claim based on breach of contract or on breach of statutory duty. Nor does it necessarily arise as a consequence of any tortious or negligent act or omission. Nonetheless, in my judgment, if it arises "in connection with the Contract" it is barred by Condition 44.4. As I have said, the words "whether such rights ..." etc. are not words of limitation.

This conclusion as to the scope of Condition 44.4 is consistent with and supported by the decision of the Court of Appeal in Ashville Investments Ltd v Elmer Contractors Ltd [1989] QB 488. The case was concerned with the construction of an arbitration clause under which the parties had agreed to submit to arbitration:

"... any dispute or difference ... as to the construction of this contract or as to any matter or thing of whatsoever nature arising thereunder or in connection therewith ..."

The question for decision was whether claims for rectification of the contract and damages for misrepresentation were caught by the arbitration clause. The Court of Appeal, agreeing with the trial judge, held that they were.

May LJ, at p.496, said this:

"I have no doubt that disputes between the parties based upon alleged mistake at the time this contract was entered into, and upon an alleged misrepresentation or negligent mis-statement, are ones ´arising in connection' with that contract and thus within the scope of the arbitration clause in this case."

Balcombe LJ , at p.503, said:

"... simply as a matter of the words used, which are of the widest import, I can see no reason why both these disputes, viz as to mistake leading to rectification and as to misrepresentation or mis-statement leading to damages, should not in each case be a dispute as to ´any matter or thing of whatsoever nature arising ... in connection therewith ' the contract. As on any question of construction the issue is incapable of much elaboration: it is a matter of how the words strike the reader."

Bingham LJ, at p.509, said this:

"But the test to be applied to any dispute or difference is a simple one: does this dispute or difference arise as to any matter or thing in connection with the contract or does it not?

......

Elmer's claims in misrepresentation and negligent mis-statement are founded upon the allegedly tortious conduct of Ashville said to have induced Elmer to sign and execute the contract. Had the statements complained of become terms of the contract, Elmer's claims for breach would, it would seem, have fallen under head (b). It is not said that the statements became terms of the contract, but that does not mean that the claims arising from them are not connected with the contract. In my view Elmer's claims in misrepresentation and negligent mis-statement relate to statements made in connection with the contract in the very real sense that they are said to have induced the making of it. Any other conclusion would in my view introduce an unwelcome element of artificiality into a very ordinary commercial transaction."

I respectfully adopt these dicta which, in my opinion, are equally applicable to the present case.

Mr Furst argued for S&H that, on the assumption that S&H were contractually entitled to have their tea cabins and clocking station close to the workplace, a construction of Condition 44.4 that would bar an action in damages for breach of that contractual right would be to reduce a contractual entitlement to a mere expectation under a declaration of intent.

I do not accept that that is necessarily so - it is not clear to me, for example, that, if the assumption is right, S&H were necessarily obliged to accept and comply with the instruction. But, even if they were so obliged, and even if, on that footing, S&H's assumed contractual right would become worthless, I do not see why the clear meaning and effect of Condition 44.4 should be cut down. If parties want to limit their potential liability to one another in the manner provided for by Condition 44.4, there is no reason why the law should stand in their way and prevent them from doing so.

The Contract in the present case is a highly complex one, created by assembling together a large number of contractual documents, including the Special and General Conditions. The danger of there being inconsistent provisions is, in such a case, a real one. So the parties provided for the order in which the contractual documents were to prevail.

But, even so, in a complex contract of this sort there would be a danger of claims being made on the basis of alleged implied terms or of alleged misrepresentation as well as damages claims for breaches of alleged contractual obligations incidental to the main contractual obligations under the Contract. The parties could not possibly foresee and provide for all the various claims that might be made in connection with or arising under the Contract. So the commercial sense in providing expressly for the claims they intended to be allowed and in simply excluding all possible claims other than those for which specific provision was made seems to me clear enough.

Mr Twigg has, in his skeleton, listed the contractual provisions which specifically allow claims of various different sorts to be made by one or other of the parties. There are 33 such provisions. They cover all the normal contractual claims. If the parties want to bar all others, why should they not do so? Parties who want to do so would incorporate into their contract a provision on the lines of Condition 44.4. I do not, therefore, attach weight to the argument that Condition 44.4 should be given a restricted construction because the parties could not have intended to bar claims of the sort being made by S&H in the present case.

Mr Furst argued that Condition 44.4 should be construed as though it did no more than declare that the parties' rights, obligations and liabilities as provided in the Conditions were exhaustive of their rights, obligations and liabilities provided in the Conditions. That is not what Condition 44.4 says, and, in any event, it would be hardly worth saying if it were. The Condition declares that the parties' rights, obligations and liabilities as provided in the Conditions are exhaustive of their rights, obligations and liabilities arising out of, under or in connection with the Contract or the Works. I can see no reason why that language should not be given its natural breadth and meaning.

Mr Furst argued also that, if Condition 44.4 were given its natural meaning, Conditions 44.2 and 44.3 would be otiose. I think that may very well be so, but it is no reason, in my judgment, to restrict the natural width of the words used in 44.4. As Lord Justice Aldous pointed out in argument, if parties want to use a belt and braces approach, they can do so.

In my judgment, therefore, Condition 44.4, on its true construction, bars a claim by S&H for loss occasioned by the addition to walking time brought about by the instruction that the tea cabins and the clocking station should be placed in the compound, whether the claim is based on breach of contract or is based on misrepresentation.

I would, therefore, allow the appeal on this second point and dismiss S&H's associated cross-appeal.

If the appeal is allowed on the two points of construction that have been argued before us, the result is that S&H's claim must fail and it becomes unnecessary to deal with the several other points raised on the appeal. I would add only that, since there is no allegation against the appellants of deceit, there can be no question of the appellants having misrepresented their current intentions when agreeing, pre-Contract, to the tea cabins and clocking office being located near to the HRSGs. That being so, their agreement or representation to that effect cannot, in my judgment, be a representation on which a damages claim under the 1967 Act could be based. It was simply not a representation of fact. Although the point has not needed to be argued in full, my present view is that the arbitrator's view on this point, accepted by the judge, cannot be right.

I would allow the appeal.

LORD JUSTICE ALDOUS: Despite my disagreeing with the judge, there is nothing that I can usefully add since I agree entirely with the judgment of the Vice-Chancellor. I also would allow the appeal.

SIR PATRICK RUSSELL: I agree with both judgments and have nothing further to add.

Order: plaintiff's appeal dismissed; defendants' appeal allowed; declarations made in the terms set out in paragraphs 2(1) and (2) on page 3 of the notice of appeal; order for costs made in the terms set out on page 4 of the notice of appeal; leave to appeal to the House of Lords by the plaintiff refused. [Not part of approved judgment]