Non-Disclosure and the Misrepresentation Act 1967: A New Framework

Abstract

It has become generally accepted that use of the phrase “misrepresentation … made” in the Misrepresentation Act 1967 excludes from the scope of s.2(1) certain cases of misrepresentation by non-disclosure. This article challenges this orthodox interpretation. It will be argued that, rather than importing a narrow definition of the word “made”, the applicability of s.2(1) in cases of misrepresentation by non-disclosure can, and should, be delimited by reference to the requirements of the tort of deceit. This alternative approach introduces much needed certainty to the scope of s.2(1); avoids an undesirable disconnect between the scope of s.2(1) and the tort of deceit; and unburdens the other sections of the 1967 Act from the restrictive and unintended effects of the orthodox interpretation.

Keywords: Misrepresentation, Non-Disclosure, Misrepresentation Act 1967, Deceit, Uberrimae Fidei