The Court of Appeal has held that a bank could rely on a disclaimer which stated that it would not accept responsibility for the accuracy of a presentation on its website showing details of its coverage for non-performing loans.
In Taberna Europe CDO II plc v Selskabet AF 1.September 2008 (formerly Roskilde Bank A/S)  EWCA Civ 1262, Taberna had purchased from another investor approximately €26m in loan notes issued by Selskabet. In deciding to do so, Taberna relied on an “investor presentation” on Selskabet’s website that included certain statements regarding Selskabet’s ability to absorb losses from non-performing loans. The presentation also included a disclaimer stating, amongst other things, that the bank could not guarantee its accuracy, that no warranty or representation was made, and that no reliance should be placed on it. Before being placed on the website, the presentation had been used at roadshows designed to encourage investors to take up the notes.
The bank argued that the presentation had not been directed to Taberna, which did not attend the road shows, and that therefore it owed no duty to Taberna. However, the judge at first instance found that Selskabet had encouraged another bank to draw the presentation to Taberna’s attention. The Court of Appeal held that this amounted to deliberately making the presentation available to Taberna with a view to it relying on the presentation for investment purposes.
However, the Court of Appeal found that the disclaimer limited the nature and scope of the statements in the presentation to such an extent that Taberna was not entitled to rely on them as a basis for its investment decision.
The court also commented, obiter, that in the absence of the disclaimer there would have been a negligent misstatement and that the damages to be awarded would have been calculated according to tortious principles rather than the more generous statutory regime of the Misrepresentation Act 1967. This was because the Act only regulated misrepresentations between parties to a contract. There was no relevant contract between the bank and Taberna due to its having purchased the notes from another investor.
This case gives an interesting insight into the courts’ developing attitude to the liability implications of making information available online. Companies making financial information available online should ensure they are accompanied by robust disclaimers.