CL-2022-000367 - [2025] EWHC 2877 (Comm)

Mr Bonnier relied on several contractual provisions to demonstrate that he did not intend for CVS to rely on what he called his “Extra-Contractual Statements” and to exclude liability.

In the Relationship Agreement, he relied on clause F.4:

“4.

Entire Agreement. This Agreement (together with its Annexes and agreements referred to therein) constitutes the entire Agreement between the Parties with respect to the subject matter of this Agreement and supersedes any prior discussions, agreements, representations or warranties.”

In the Aaqua Subscription Agreement, he relied on various limbs of clause 6:

“6.

Common Understandings. Each of the parties understand and represent that:

…

(iv)

AAQUA has limited operating history and that an investment in the AAQUA Subscription Shares involves material risks. Any financial projections that may have been provided are based upon assumptions of future operating results reasonably developed by AAQUA and are not binding. Any financial projections, therefore, merely represent an estimate by AAQUA of future results that it hopes can be achieved by AAQUA based upon reasonable assumptions as to certain events, many of which are beyond the AAQUA’s control. No assurances or representations can be given that the actual results of the operations will conform to the projected results for any or all of the indicated years.

(v)

CV has carefully considered and has, to the extent it believes such discussion necessary, discussed with its professional legal, tax and financial advisors, the suitability of investing in the AAQUA Subscription Shares for its particular tax and financial situation, and CV has determined that the AAQUA Subscription Shares is a suitable investment for it. In making its investment decision, CV has relied solely on its own advisors, and not on the advice of AAQUA.

(vi): CV has relied on its own due diligence and investigations and has been afforded the opportunity to ask questions of and receive answers from duly authorized officers or other representatives of AAQUA concerning AAQUA’s business, assets and financial position. CV acknowledges that AAQUA shall not be liable for any representations and warranties other than those appearing in this Agreement.”

Mr Bonnier said that the provisions had the following legal effects:

For the reasons set out in Lewison’s 'The Interpretation of Contracts' (8th ed), §3.142-143 and §12.167-177, none of the provisions are effective to exclude liability for fraudulent misrepresentations.

As regards clause F.4 of the Relationship Agreement, Entire Agreement clauses can derogate from the contractual effect of a statement, but they do not affect the status of the statement as a misrepresentation without clear words to that effect: AXA Sun Life Services v Campbell Martin [2011] EWCA Civ 133, per Rix LJ at [94]:

“…the exclusion of liability for misrepresentation has to be clearly stated. It can be done by clauses which state the parties’ agreement that there have been no representations made; or that there has been no reliance on any representations; or by an express exclusion of liability for misrepresentation. However, save in such contexts, and particularly where the word “representations” takes its place alongside other words expressive of contractual obligation, talk of the parties’ contract superseding such prior agreement will not by itself absolve a party of misrepresentation where its ingredients can be proved.”

Next, in relation to the provisions under Clause 6 of the Aaqua Subscription Agreement, CVS relied on HIH Casualty and General Insurance Ltd v Chase Manhattan Bank and others [2003] UKHL 6, per Lord Bingham at [15]:

“… fraud is a thing apart. This is not a mere slogan. It reflects an old legal rule that fraud unravels all: fraus omnia corrumpit. It also reflects the practical basis of commercial intercourse. Once fraud is proved, ‘it vitiates judgments, contracts and all transactions whatsoever’: Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712 per Denning LJ. Parties entering into a commercial contract will no doubt recognise and accept the risk of errors and omissions in the preceding negotiations, even negligent errors and omissions. But each party will assume the honesty and good faith of the other; absent such an assumption they would not deal.”

The only relevant provision that is worded widely enough to have any arguable effect on liability for pre-contractual misrepresentation is the final sentence of clause 6(vi). However, this does not exclude liability for fraud.