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Appeal by Waheeda Akram against Assessor for Lothian Valuation Joint Board (Court of Session)
Factual and Procedural Background
The Plaintiff, a waste management company, contracted with Company A (the scheme administrator) to act as logistics provider for a deposit-return programme established by the Defendant under powers in the Climate Change (Scotland) Act 2009 and the Deposit and Return Scheme for The State Regulations 2020. Company A appointed the Plaintiff as logistics provider on 18 July 2022. The contract anticipated mobilisation ahead of an operational date in August 2023 and included mitigation measures (insurance, producer pre-pay arrangements and a contractual longstop).
Between 2021 and 2023 political and inter-governmental issues arose under the Internal Market Act 2020 (IMA). The Defendant sought an IMA exclusion for the scheme; a broad exclusion sought in 2021 was not granted in March 2022, and a scheme- specific application was not transmitted in final form until March 2023. On 26 May 2023 the Central Government indicated it would approve a conditional, partial exclusion that excluded glass; the Defendant thereafter announced a substantial postponement of the scheme (June 2023). Company A went into administration and refused to perform the Plaintiff's contract, which the Plaintiff contends caused loss of £51.4m.
Procedurally, the Plaintiff sued the Defendant claiming negligent misrepresentation (a comfort letter dated 17 May 2022 from the Minister) and an independent duty of care by way of assumed responsibility to warn of IMA-related risk. The court held a diet of proof on liability limited to (a) whether a duty of care existed and (b) whether any breach caused loss (quantum left over if necessary). Judge Sandison heard oral and documentary evidence from witnesses for both sides and reserved other issues.
Legal Issues Presented
- Whether the Defendant owed the Plaintiff a duty of care in relation to statements made in a letter dated 17 May 2022 (negligent misrepresentation) and/or a duty positively to disclose the status and materiality of any IMA exclusion process (assumption of responsibility / failure to warn).
- If such a duty existed, whether it was breached by the Defendant (by omission or misleading reassurance) and whether any breach caused the Plaintiff's losses.
Arguments of the Parties
Plaintiff's Arguments
- The 17 May 2022 ministerial letter constituted a negligent misrepresentation (a half-truth) because it reassured the Plaintiff as to the deliverability and legislative footing of the scheme while omitting the material fact that an IMA exclusion was required, had not been sought and might not be granted; reliance induced the Plaintiff to enter the contract and incur mobilisation expenditure.
- Alternatively, the Defendant assumed a special responsibility towards the Plaintiff (the only party able to apply for an IMA exclusion and uniquely informed of its status) and thus owed a duty to warn; the Defendant breached that duty by failing to alert the Plaintiff to the IMA position and to the absence of an active, advanced exclusion request.
- Reliance was reasonable because the Plaintiff was the unique prospective logistics provider, had expressed its capital exposure, and the ministerial reassurance was a decisive factor for senior management recommending signature.
Defendant's Arguments
- The 17 May 2022 letter was a true political and administrative reassurance about commitment to the programme and Company A's approved status; it did not assert matters of law that were untrue and did not represent an undertaking to provide legal advice about the IMA.
- The Plaintiff was an experienced commercial operator with internal and external legal and financial advisers; it was unreasonable to rely on a ministerial comfort letter instead of conducting legal inquiry about the public-law landscape and the IMA.
- No wider duty to warn existed as a matter of private law in the context of decisions to implement public policy; the Defendant followed the common- framework process for an IMA exclusion and cannot be held liable for political or ministerial decisions by the Central Government.
- If any duty were recognised, causation and mitigation issues remained unresolved and the Plaintiff had contractual and insurance mitigations available which undermined reliance and causation.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Brooks v Commissioner of Police [2005] UKHL 24, [2005] 1 WLR 1495 | Public authorities are not immune from delictual liability; context of public functions can affect duty. | Cited as authority that public bodies may owe delictual duties but that statutory context can limit scope. |
| Woodcock v Chief Constable of Northamptonshire [2023] EWHC 1062 (KB), [2023] PIQR P16; [2025] EWCA Civ 13, [2025] PIQR P8 | Recent authority on public authority duties and factual analysis of assumption of responsibility. | Used as a modern comparator for analysing duty elements and public policy considerations. |
| A v Essex County Council [2003] EWCA Civ 1848, [2004] 1 WLR 1881 | Duty analysis where public bodies exercise statutory functions; foreseeability and assumption issues. | Referenced in the discussion of public authority liability principles. |
| Poole Borough Council v GN [2019] UKSC 25, [2020] AC 780, [2019] 2 WLR 1478 | Framework: public authorities may owe duty of care unless inconsistent with statutory scheme; concept of assumption of responsibility. | Principal modern authority guiding whether a public authority's statutory role excludes private-law duty; applied to limit scope of any duty. |
| Robinson v Chief Constable of West Yorkshire [2018] UKSC 4, [2018] AC 736, [2018] 2 WLR 595 | Public policy is not a free-standing reason to deny liability; ask whether statute excludes common-law duty. | Cited to support approach that established common-law categories govern recognition of duties. |
| Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057 | Statute may exclude duties that would otherwise arise; interpret statute for inconsistency. | Referred to when considering whether statutory context precludes duties alleged. |
| Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 | Foundation for negligent misstatement / assumption of responsibility causing pure economic loss. | Core touchstone for negligent misstatement and assumption of responsibility analysis in the case. |
| Batchelor v Opel Automobile GmbH [2025] CSOH 93 | Recent exposition on negligent misstatement as "touchstone" and application of Hedley Byrne principles. | Cited as confirmation of settled law regarding negligent misstatement and assumption of responsibility. |
| Spring v Guardian Assurance plc [1995] 2 AC 296 | "Special skill" concept and necessity of due care in providing information or advice. | Used to emphasise breadth of "special skill" and that access to information can ground liability. |
| Lennon v Commissioner of Police of the Metropolis [2004] EWCA Civ 130, [2004] 1 WLR 2594 | Identification of circumstances giving rise to a special relationship sufficient for duty in making statements. | Used to frame the factual inquiry into whether a special relationship existed here. |
| Customs and Excise Commissioners v Barclays Bank [2006] UKHL 28, [2007] 1 AC 181 | Whether a defendant assumed responsibility for accuracy/use of information; focus on reasonable inference from conduct. | Cited for the proposition that assumption of responsibility depends on reasonable inference from conduct and circumstances. |
| Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 | Principles of objective contractual/constructional interpretation applied to representations. | Applied to the construction of the ministerial letter and objective meaning for a reasonable recipient. |
| Cassa di Risparmio della Repubblica di San Marino SpA v Barclays Bank Ltd [2011] EWHC 484 (Comm), [2011] 1 CLC 701 | Objective construction of statements in context; impact on reasonable representee. | Cited in support of approach to construing communications in context. |
| Gluckstein v Barnes [1900] AC 240 | Half-truths may be as misleading as falsehoods. | Quoted in discussion of "half-truth" concept for negligent misrepresentation. |
| Park's of Hamilton (Holdings) Limited v Campbell [2008] CSOH 177 | Assessment of whether words create a false impression in light of surrounding circumstances. | Used for the proposition that totality of statement matters; applied to letter analysis. |
| R v Lord Kylsant [1932] 1 KB 442 | A statement omitting material facts can convey a false impression. | Referenced to support treatment of omissions as capable of misrepresentation. |
| Royal Bank of Scotland plc v O'Donnell [2014] CSIH 84, 2015 SC 258 | Concealment and half-truths may amount to misrepresentation; totality of statement matters. | Cited in support of treating materially misleading omissions as misrepresentations. |
| Cramaso LLP v Earl of Seafield [2014] UKSC 9 | Continuing nature of pre-contractual representations; responsibility for accuracy until contract. | Referenced for the continuing effect of pre-contractual assurances. |
| JEB Fasteners Ltd v Marks Bloom & Co [1983] 1 All E.R. 583 | Misrepresentation must play a "real and substantial part" in inducing contract. | Used in causation discussion for negligent misrepresentation. |
| BP Exploration Operating Co Ltd v Chevron Shipping Co [2001] UKHL 50 | Principles on causation and inducement by representations. | Cited for causal standard that misrepresentation need only be an inducing cause. |
| Raiffeisen Zentralbank Österreich AG v Royal Bank of Scotland Plc [2010] EWHC 1392 (Comm), [2011] 1 Lloyd's Rep 123 | Counterfactual analysis in causation for misrepresentation: what would claimant have done if no representation? | Discussed at length; court declined to adopt the strict counterfactual test urged from Raiffeisen in this case. |
| Dadourian Group International Inc v Simms [2009] EWCA Civ 169, [2009] 1 Lloyd's Rep 601 | Inference of reliance where representation is likely to play a part in a reasonable person's decision. | Cited to support inference of reliance where appropriate. |
| Redgrave v Hurd (1881) 20 Ch D 1 | Reliance may be established by inference; misrepresentation need not be proved by direct testimony. | Applied to the question of whether reliance could be inferred. |
| Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd [2023] EWHC 2759 (Comm) | Counterfactuals and evidential use of "what would have happened if truth known". | Cited in causation discussion as evidential tool notwithstanding primary counterfactual test. |
| Njord Partners SMA-Seal LP v Astir Maritime Ltd [2024] EWHC 1682 (Comm) | Representee must prove it would not have acted (or not in same way) if misrepresentation absent. | Referenced in assessing causation and available evidential approaches. |
| Downs v Chappell [1997] 1 WLR 426 | Historical authority on causation in deceit cases (discussed and critiqued). | Discussed and distinguished in relation to negligent misrepresentation causation analysis. |
| Smith New Court Securities Ltd v Citibank [1997] AC 254 | Principles on recoverable loss in deceit and causation. | Invoked in critique of approaches which would narrow recoverable loss unduly. |
| HXA v Surrey County Council [2023] UKSC 52, [2024] 1 WLR 335 | Assumption of responsibility may arise without claimant's active reliance (context of vulnerability). | Used to show reliance is not always a necessary feature for an assumption-of-responsibility duty. |
| JP SPC4 v Royal Bank International Ltd [2022] UKPC 18, [2023] AC 461 | Non-exhaustive factors to assess assumed responsibility (purpose, defendant's knowledge, reasonableness of reliance). | Adopted as a structured checklist in analysing whether the Defendant assumed responsibility here. |
| Aruchanga v Secretary of State for the Home Department [2023] EWHC 282 (KB), [2023] PIQR P12 | Assumption of responsibility where defendant was sole actor able to take decisive action; weight given to exclusivity of power. | Relied upon to note the significance of the Defendant being uniquely able to seek an IMA exclusion. |
| Tindall v Chief Constable [2024] UKSC 33, [2025] AC 1046 | Assumption of responsibility can arise by words or conduct promising to take care to protect another from harm. | Quoted for the principle that express or implied assurances can create an assumed duty. |
| Mitchell v Glasgow City Council [2009] UKHL 11, [2009] AC 874 | Limits on general duty to protect others from harm by public authorities; the "no duty to warn" principle in some contexts. | Referred to in public policy background although distinguished on facts. |
| Yuen Kun Yeu and Others v Attorney-General of Hong Kong [1988] AC 175 | Illustration of absence of duty to warn in some contexts. | Cited by way of contrast when discussing when a duty to warn may not exist. |
| White v Jones [1995] 2 AC 207 | Liability for negligent statements tied to reliance; discussion of necessity of reliance in misstatement claims. | Used to explain differences between negligent statements and negligent action/omission claims. |
| Steel v NRAM Ltd [2018] UKSC 13 | Test from Hedley Byrne reiterated: reasonableness of reliance and foreseeability of reliance. | Applied in assessing whether the Plaintiff's reliance on the letter was reasonable. |
| Phelps v Hillingdon London Borough Council [2001] 2 AC 619; Ministry of Housing and Local Government v Sharp [1970] 2 QB 223; Barrett v Enfield [2001] 2 AC 550; Henderson v Merrett [1995] 2 AC 145 | Examples where assumption of responsibility has arisen in statutory or professional contexts. | Referred to as precedents showing statutory functions can give rise to assumed duties in some circumstances. |
Court's Reasoning and Analysis
The court framed the dispute narrowly: whether (a) the 17 May 2022 ministerial letter was a negligent misrepresentation (or created an assumed responsibility to the Plaintiff) and (b) whether any duty to warn existed and was breached causing loss. The court proceeded by (i) construing the letter objectively in its factual context; (ii) assessing whether a reasonable recipient in the Plaintiff's position could have taken from it the material false impression alleged; (iii) determining whether reliance by the Plaintiff upon any such impression was reasonable; and (iv) analysing whether the Defendant, by voluntarily issuing the letter, had assumed a responsibility extending to disclosure of IMA-exclusion status.
On construction and reliance the court accepted that the Defendant had relevant specialist knowledge and that the letter plainly sought to reassure parties about political commitment and Company A's approved status. The court rejected the Plaintiff's contention that the letter should reasonably have been read as a guarantee that no further legislative obstacle (the lack of an IMA exclusion) remained. The judge found (a) the Plaintiff's CEO's later account that he understood the letter to convey legislative sufficiency was not supported by contemporaneous evidence and was improbable; (b) an objectively reasonable reader would not have inferred the broader legal assurance asserted by the Plaintiff; and (c) reliance on that strained construction would not have been reasonable.
On the assumption-of-responsibility / duty-to-warn limb, the court held the Defendant did assume responsibility to state matters of its private knowledge in the letter with reasonable care (eg commitment and Company A's approval). That assumption did not, however, extend to a free-standing promise to disclose all material matters (including public-domain or inter-governmental matters) the Defendant had not volunteered. The letter expressly invited further questions; no further enquiries were made. The court observed that, had the Defendant assumed a wider responsibility, disclosure would be limited to information uniquely within its private knowledge, not matters in the public domain or for which industry observers and the Plaintiff's advisers might reasonably be expected to investigate.
On causation the court noted that the Plaintiff asserted it would not have contracted had it been told the true IMA position. The judge accepted that evidence in the abstract but concluded there was no established misrepresentation because no reasonable reader would have taken the letter to mean what the Plaintiff later said it did. Consequently, the misrepresentation claim failed. Similarly, because the objective scope of any assumption of responsibility did not extend to the undisclosed IMA matters the Plaintiff relied upon, the duty-to-warn claim failed. The court therefore found no actionable breach by the Defendant.
Holding and Implications
DECREE OF ABSOLVITOR GRANTED
Holding: The court dismissed the Plaintiff's claims. It held that (1) the 17 May 2022 letter did not, on objective construction, amount to a negligent misrepresentation as alleged; and (2) while the Defendant assumed responsibility to state accurately matters of its private knowledge in issuing the letter, it did not assume a broader duty to disclose the state of inter-governmental processes concerning the IMA that the Plaintiff asserted it should have been told.
Implications: The direct consequence is that the Plaintiff's liability claim against the Defendant fails and no proof on quantum is fixed. The decision applies established principles on negligent misstatement and assumption of responsibility to a public-authority context and does not create a novel expansion of duties on government to provide comprehensive legal updates to private commercial counterparties; no new precedent enlarging public-law disclosure duties was established.
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