Berry Smith recently acted for the Defendant in a 3-day multi-track trial relating to the sale of a £4 million rural estate containing polo and equestrian facilities. The Claimant, who was represented initially but acting as a litigant in person towards trial, advanced claims for misrepresentation and breach of contract, all of which were ultimately dismissed in their entirety.

Caveat emptor and misrepresentation

The misrepresentation allegations were wide-ranging. The Claimant relied on alleged statements concerning the decorative order of the property; the suitability of the equestrian facilities; the apparent health of a sycamore tree described as ‘green’ or ‘alive’; and a reference to ‘machinations’ and ‘subterfuge’ all said to have caused loss and prevented the launch of a business venture.

The Court reaffirmed caveat emptor, a well-established principle of both the conveyancing and legal systems. The Court found many of the matters complained of would have been apparent to the Claimant on inspection.

Notably, the Claimant had chosen to commission only valuation surveys and did not obtain a structural survey, despite the property’s value and age (with parts dating back to the 1600s). The Court found this omission surprising.

The Claimant’s reliance on Iya Patarkatsishvili and Yevhen Hunyak v William Woodward-Fisher [2025] EWHC 265 (Ch)) (infamously known as ‘the Moth Case’) was insufficient to pierce the shield of caveat emptor. Crucially, the Claimant failed to properly plead fraud in line with the Civil Procedure Rules, and therefore, was not permitted to advance a case in fraudulent misrepresentation at trial.

On the pleadings and evidence, the Court found there was no basis to suggest caveat emptor should be disapplied, nor has any actionable misrepresentation been found. In any event, a contractual exclusion clause limiting reliance on representation operated as a bar to the Claimant’s claim.

This aspect of the judgment underlines the importance of careful pre-contract enquiries and contractual drafting. Oral statements made prior to exchange but not incorporated into replies to enquiries or the contract will generally not be actionable. Buyers should use caution and, if they are seeking certainty, they must ensure that key matters are expressly documented and form part of the contract.

Vacant possession

The Claimant also alleged breach of contract on the basis that vacant possession was not provided on completion – the Defendant, items belonging to the Defendant, and their groom – remained at the property.

Whilst the Court acknowledged the standard expectation on the sale of property is that vacant possession is given, the Court found for the Defendant. The Claimant had not been able to satisfy the Court on any grounds that any contractual breach occurred. Several key points were decisive:

(1) No substantial interference: the Claimant failed to demonstrate that any items remaining at the property (including rubbish) amounted to a substantial interference. The Claimant did not make clear what items having remained on the property were so egregious as to go beyond the de minimis threshold.

(2) Conduct amounting to consent: the Claimant and Defendant maintained a good and friendly relationship before and after completion. The Court found that the Claimant’s actions and

conduct amounted to consent to the Defendant’s occupation, and the Defendant was not expected to vacate in the same manner as a normal seller.

(3) Absence of objection or coercion: there was no evidence demonstrating the Claimant was pressured to accept non-vacant possession, nor did the Claimant ever express dissatisfaction or complain about the Defendant’s occupation following completion. The evidence clearly demonstrated a friendly relationship was maintained between the parties.

(4) Commercial reality at completion: the Claimant had failed to complete on multiple occasions. The Court found that it was clear by completion, the parties were concerned with completing the transaction and deal with ancillary matters afterwards.

Costs

The Court awarded indemnity costs to the Defendant for a period of just over two years without any Part-36 offer having been made. The conduct of Berry Smith in providing clear correspondence with the Claimant while they were unrepresented – including reminders for expert witness deadlines, and explanations on consequences – made a significant difference at trial and was a material factor on the decision on costs.

Key takeaways

This case reinforces several important principles:

(1) Caveat emptor is alive. A buyer will struggle to demonstrate actionable misrepresentation where defects are observable and where there is no concealment.

(2) Buyers should carry out appropriate due diligence and ensure the contract incorporates representations they wish to rely on, if not already contained within the formal pre-contract enquiries or the Law Society protocol forms. For sellers, a suitably drafted contract ought to contain a special condition limiting liability for representations made outside of formal pre-contract enquiries.

(3) Making early proposals for settlement is essential, even if not via Part 36, to provide costs protection.