The UK Court of Appeal recently considered the issue of website disclaimers and whether customers of such websites are owed a duty of care for any loss suffered through reliance on negligent misrepresentations made on the sites*. The decision clarifies that owners can owe a duty of care to their visitors, however once visitors are warned to seek further information in relation to representations made, website owners may escape owing visitors such a duty of care.

Following a Google search for pool installers, the Patchetts visited the Swimming Pool and Allied Trades Association's website ("SPATA"). They used the website's "member finder" section to contact three companies for quotes. This section of the SPATA website made a claim that "pool installer members are fully vetted before being admitted to membership, with checks on their financial record, their experience in the trade and inspections of their work." However, the website did not make it clear that there were members and affiliate members and that only full members were vetted as referred to above. The Patchetts relied on the SPATA representations and hired affiliate member Crown Pools Limited. Crown Pools Limited then later went out of business and the Patchetts suffered financial loss (approximately £44,000) when they had to pay another installer to finish their pool. They claimed that SPATA's representations in the "member finder" section were negligent and that SPATA had failed to take reasonable care in making such representations.

The court found in favour of SPATA, relying on a statement contained on SPATA's website in its "about us" page. This statement urged potential customers to obtain an information pack before hiring a swimming pool installer and the court decided that this recommendation was in effect a disclaimer.

The court decided that, although the SPATA "member finder" terms were misleading, SPATA's advice in relation to the information pack for further due diligence allowed it to escape liability. The court also referred to the case of Hedley Byrne v Heller [1964] AC 465 which sets out the criteria for establishing a duty of care for negligent misrepresentation. These include knowing either actually or inferentially that the misrepresentation is likely to be relied upon without independent inquiry. The court found that criterion had not been satisfied as the website urged independent inquiry. Further, the Patchetts themselves, in failing to take the advice, had not exercised sufficient care. It is noteworthy that Mr. Patchett admitted reading the disclaimer and acknowledged that he should have made the inquiries recommended. SPATA was effectively held not to owe a duty of care to the Patchetts due to its recommendation that website visitors request an information pack and because the Patchetts had failed to heed the recommendation.

Also of note is the dissenting judgment of Lady Justice Smith, who stated in relation to the section on the website advising on an information pack, that there was nothing "which would suggest to the reader that it was necessary to obtain the information pack in order to make a further check on the credentials of the members listed on the website." This highlights the need to ensure disclaimers are drafted clearly and accurately.

As this is of persuasive authority in Ireland, this case highlights the value of disclaimers. It is a reminder that website owners should ensure that their sites contain liability-limiting language, and that any disclaimers, terms and conditions or limitations of liability are drafted as carefully as possible and adequately brought to their users' attention.

*Patchett and another v. Swimming Pool and Allied Trades Association Limited, 15 July 2009, [2009] EWCA Civ 717