Griffiths & Anr v Gilbert

[2022] EWHC 3122 (TCC)

The Claimants claimed damages for fraudulent misrepresentation, alleging that Mr Gilbert represented to them that CEG would take out full NHBC cover of £2 million. Mr Gilbert said that he had only ever said that CEG would obtain a standard NHBC policy, which has a limit on defects’ claims of £1 million. The law was not in dispute. Rix LJ in The Kriti Palm[2006] EWCA Civ 1601 said that: 

“The elements of the tort of deceit are well known. In essence they require (1) a representation which is (2) false, (3) dishonestly made, and (4) intended to be relied on and in fact relied on”

HHJ Watson had to consider what representations were made. The Claimants said that a note of a meeting held on 2 December 2007, was not genuine. The Judge commented that: 

“I am aware that it is common practice for construction professionals to keep day books, diaries or notebooks as records of events and reminders to themselves. I do not find it surprising that Mr...decided to transcribe his notes from one notebook to another so that they were all in his main notebook. Of course, it is possible that the entry in relation to NHBC could have been added later for the purposes of the litigation. However, it is not in dispute that both notebooks were disclosed simultaneously in the arbitration proceedings. No attempt was made to withhold the existence of the earlier notebook or the fact that it did not contain the record contained in the A4 notebook. That is not the action of an individual fraudulently creating records for the purposes of litigation. I find that the record is a record of [...]’s recollection of the discussion at the meeting, albeit that it was written at least eight months after the meeting took place.” 

Further, the Claimants did not raise their claims immediately. In the view of the Judge, it was unusual for someone who felt they had been cheated to withhold their complaint for several years before making it to the person who cheated them.

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