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Cite as: [1999] EWHC QB 184

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Kidd v. Axa Equity & Law Life Assurance Society plc, Allied Dunbar Assurance plc [1999] EWHC QB 184 (15th December, 1999)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Case Nos. 1993 K 1389
1993 K 1170

The Royal Courts of Justice
Strand, London WC2A 2LL

Date:15 December 1999

Before:

THE HONOURABLE MR. JUSTICE BURTON

BETWEEN:

RICHARD ANDREW KIDD

Claimant

and

AXA EQUITY & LAW LIFE ASSURANCE SOCIETY PLC

1st Defendant

and

ALLIED DUNBAR ASSURANCE PLC

2nd Defendant

-----------------------------

Mr. C. ROSS-MUNRO Q.C. and Mr. W.E. PAWLAK appeared on behalf of the Claimant
Mr. N. JONES Q.C. and Mr. A.M. GOOLD appeared on behalf of Equity & Law
Mr. M. A. SOOLE appeared on behalf of Allied Dunbar

JUDGMENT 3

MR JUSTICE BURTON

1. In this trial between the Claimant and the First Defendant:-

1.1 I have considered and based myself upon the assumed facts and the documents in the specially prepared core bundle as supplemented during the course of the hearing.

1.2 The Claimant puts forward no case based upon the provision of false information.

1.3 The First Defendant has reserved certain defences.

2. False information apart, I find that the tortious duty owed, subject to its reserved defences, by the First Defendant to the Claimant is a duty to take reasonable care, when giving a reference, not to give misleading information about the Claimant, whether as a result of the unfairly selective provision of information, or by the inclusion of facts or opinions in such a manner as to give rise to a false or mistaken inference in the mind of a reasonable recipient. I do not need to consider separately the question of contract, as the duty would be no different.

3. I do not find that there is any additional duty owed whether in tort or in contract to the Claimant by the First Defendant, to take reasonable care to give a full and comprehensive reference, or to include in a reference all material facts.

4. To prove that the First Defendant is in breach of the duty I have found in paragraph 2 above, the Claimant must establish:-

4.1 that information provided in the reference is misleading;

4.2 that the provision of such misleading information is likely to have a material effect upon the mind of a reasonable recipient of the reference to the detriment of the Claimant (which I shall call "materially misleading");

4.3 that the First Defendant was negligent in providing such reference.

5. The reference in question was that of 26th March 1992, being the letter of that date at core bundle p187 and the completed questionnaire at core bundle pp188 -189, as supplemented by the subsequent provision of the letter of 13th May 1992 at core bundle p202, with its enclosures at core bundle pp190-191, and pp195-197. No further written and no oral references are relied on by the Claimant.

6. I conclude that upon the evidence the information supplied by the First Defendant at core bundle pp187-189 was (a) not misleading, materially or at all, (b) not negligently provided.

In particular, I conclude:-

6.1 that the following were not or did not contain misleading information or responses, materially or at all: boxes (as numbered by me) 6.1,6.2,7,8.1,8.2,9,14 and 15, at core bundle pp188-189 read together with the letter at core bundle p 187.

6.2 that the Lautro requirement, whether or not its interest or concern arose originally from the similarity of Equity Release packages to Home Income plans, was for a review of the Claimant's selling practices, which review was proceeding, and that there were continuing investigations by the First Defendant into seven, later eight, complaints as to the Claimant's selling practices. In as far as any of the matters set out in Mr Colin Ross-Munro QC's suggested model reference were not stated by the First Defendant, it was not misleading materially or at all not to do so.

6.3 that the First Defendant did not act negligently in stating the matters in paragraph 6.1 or in not stating the matters in paragraph 6.2

I reach the conclusions in paragraph 6.1, and 6.2 both severally and looking at the whole reference in the round.

7. I conclude that the supplementary information provided by the First Defendant at core bundle pp202, 190-191, and 195-197 , did not, whether taken severally or in the round and together with the reference of 26th March 1992, constitute information which was materially or at all misleading and/or provided negligently. In particular, I judge that it is not in breach of such duty for the First Defendant to have sent the letter and enclosures on 13th May 1999, or not to have stated, insofar as it did not, the matters set out in Mr Ross-Munro QC's suggested model reference.

8. If I were wrong, and there was a duty as referred to in paragraph 2 above, however such duty is formulated, I am satisfied that, in as far as the First Defendant would have been required to say more than it did:-

8.1 I would not find that the First Defendant would have had a duty to provide, or would have been in breach of duty in not providing, a reference substantially in the form of Mr Ross-Munro QC's suggested material reference;

8.2 the provision of further information would have led to the disclosure, to the recipient of the reference, of further matters to the Claimant's potential detriment as well as to his potential benefit. I am satisfied that taken in the round it would not have improved his position vis-a-vis the reasonable recipient;

8.3 I would not consider that the First Defendant was negligent in providing the reference that it did.

9. I therefore give judgment for the First Defendant and dismiss the Claimant's claim against it. I shall deliver my detailed reasons in due course.

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