The continuing effect of a negligent pre-contractual misrepresentation — Cramaso v Ogilvie-Grant, Earl of Seafield and Others

Pre-contractual representations: to whom is the duty owed? A recent Supreme Court judgment dealing with an appeal from the Scottish Inner House decides that a party can be liable for a pre-contractual misrepresentation, even though the representation was first made to a party other than the ultimate contracting party. While this is a decision developing upon Scottish law principles, it may well be persuasive (and is therefore significant) authority for English jurisprudence.

The respondents were the owners of a grouse moor at Castle Grant in Scotland, over which commercial shooting takes place. They sought to attract a tenant who would be willing to undertake the substantial investment in the moor in order to increase the number of grouse. In autumn 2006, the respondents contacted an individual, E, to pursue the possibility of his taking a lease of the moor.

The respondents made representations in an email to reassure E that the moor had the capacity to bear the planned shooting that season. The email included information about grouse counts and the estimated grouse population of the moor, extrapolated from the counts. The counts were based on the parts of the moor that were considered to be the most heavily populated by grouse and were not representative of the moor as a whole. As a result, the estimated grouse population, as stated in the email, was well in excess of the actual population…

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