Continuing Representations and Strict Responsibility for Accuracy After Cramaso: Fact or (Legal) Fiction?

Abstract

This chapter falls within the theme of this collection broadly under the rubric of reworking established concepts in common law. In fact, the chapter addresses a question not yet definitively answered by common-law courts (although it was recently answered for Scotland, at least at the intermediate appellate level in that jurisdiction): Is an innocently unknown and unsuspected change in the material facts between the making of a (continuing) representation and the representee’s adverse reliance thereon an ‘innocent misrepresentation’? The platform for an inquiry of this nature is the recent decision of the United Kingdom Supreme Court in Cramaso LLP v. Ogilvie-Grant [2014] UKSC 9, which, it seems, still fails to answer, unambiguously, the question above-posed. This chapter argues that the innocently unknown supervening falsification of a continuing representation is not innocent misrepresentation, except by dint of a ‘legal fiction’ device of some sort. It concludes that resorting to legal fiction to render the defendant liable as an innocent misrepresentor in the present circumstances is probably harmless, but only if the fiction invoked is of the ‘assumptive’ rather than ‘assertive’ variety.