CONTENTS
1.	Introduction	1
2.	Conduct – What Did The Defendant do to Mislead The Plaintiff?	5
2.1	The issue	5
2.2	Different types of statement: facts, opinions, predictions, intentions, promises	5
2.3	Express statements of fact – when are they insufficient to establish liability?	6
	Reliance – an essential ingredient	7
	Xanthe is not entitled to rely on the statement	9
2.4	Implied statements	14
	Implied statements generally	14
	Predictions and opinions about the future	15
	Statements in the form of opinions	17
	What is implicit in a statement of intention (which is not a contractual promise)?	19
	What is implicit in a contractual promise?	20
2.5	Conduct	20
2.6	Silence and failures to warn/disclose	21
	Non-disclosure as a misrepresentation	21
	Non-disclosure and the Fair Trading Act	23
2.7	Assuming responsibility for the accuracy of a third party’s statements	24
2.8	Failure to disabuse the plaintiff of a known (or suspected) error	25
2.9	Shared misconceptions	26
2.10	Disappointment of defendant’s objective in entering into a transaction	26
2.11	Mere puffs	28
2.12	Who is responsible for the conduct?	28
	Liability of principal for agent’s statements	28
	When is a company director or employee personally liable in respect of statement?	29
3.	Knowledge – what did the defendant know [about what?] and does it matter?	33
3.1	What do we mean by knowledge?	33
3.2	When does knowledge matter?	35
	Claims under statute	36
	Non-statutory causes of action	41
	Common law claims	49
3.3	Knowledge and corporate defendants	53
3.4	The special position of third parties	54
3.5	Change of position	54
4.	Causes of Action and Their Elements	59
4.1	Introduction	59
	Claims against the deceiver	59
	Claims against third parties	60
4.2	Fair Trading Act 1986	60
4.3	Breach of a contractual term, express or implied	62
	Express terms	63
	Implied terms	63
4.4	Contractual Remedies Act 1979, ss 6 and 9	64
4.5	The tort of deceit	66
	Proprietary claims based on deceit	68
4.6	The tort of negligent misstatement	70
4.7	Breach of fiduciary duty	72
4.8	Estoppel	73
4.9	The Contractual Mistakes Act 1977	76
4.10	The Illegal Contracts Act 1970	77
4.11	Proprietary claims at law	77
4.12	Proprietary claims in equity	78
4.13	Money had and received	79
4.14	“Knowing receipt or dealing”	80
4.15	Unjust enrichment?	81
4.16	Claims against third parties	82
	Third party “involved in” the deception	82
	Third party enriched as a result of the deception	83
	Third party should have prevented the deception	84
4.17	Dishonest accessory liability	84
5.	Contracting Out	87
5.1	General comments	87
5.2	Contractual Remedies Act	88
5.3	Contractual Mistakes Act	91
5.4	Fair Trading Act	92
6.	Relief	97
6.1	Introduction	97
6.2	The move towards greater flexibility in remedies	97
6.3	Expectation damages under the Fair Trading Act?	99
6.4	Causation and remoteness tests applied to equitable compensation	104
6.5	Scope of duty in tort as a limit on types and amounts of recoverable loss	107
	Limits on type of loss recoverable/plaintiffs who can recover loss	107
	Limits on quantum of loss recoverable	109
6.6	Where does this leave us?	113
6.7	Expectation damages	113
6.8	Proprietary remedies against the primary wrongdoer	115
	Property interest retained by the victim	115
	Institutional constructive trusts	116
	Statutory discretion to order return of property	118
	Discretionary relief of a proprietary nature	119
6.9	Proprietary remedies against a third party	122
6.10	Remedies based on the wrongdoer’s gain	123
6.11	Compensation for losses – some relevant factors	125
6.12	Doing better than compensation for reliance losses –
	the need for an “x-factor”	126
7.	Limitation	129
7.1	Introduction	129
7.2	Fair Trading Act claims	129
7.3	Contract claims	130
7.4	Negligent misstatement	130
7.5	Deceit	131
7.6	Claims for breach of fiduciary duty	131
7.7	Knowing receipt and dishonest accessory claims	132
	Knowing receipt or dealing	132
	Dishonest accessories	134
7.8	Other common “deception-related” claims	134
7.9	Extension of limitation period in cases of fraud	134
8.	A Word About Contributory Fault	137
Problem 1 –	Margaret’s Marvellous Muffins	141
Problem 2 –	Harry’s Hopeless Honey	143