Thanks to the internet, commercial documents can easily be made available to a wide audience. But if, for instance, company accounts are put on a company’s website, does the company owe a duty of care to those who rely on that information?
Taberna, an investment vehicle, alleged that a Danish bank had misrepresented to it the amount of its non-performing loans, probably through a document on the bank’s website. The Court of Appeal considered that placing documents on a company’s website was not, on its own, sufficient to create the degree of proximity required for a duty of care. To hold otherwise would be inconsistent with Caparo v Dickman, which confirmed the principle that a document such as the accounts of a public company can be relied upon as against the directors and auditors only by those to whom it is addressed. For a representation in a document to be actionable by the recipient there has to be a connection between the maker and the recipient of a kind that enables the court to be satisfied that the maker was intending the recipient to rely on the document in a particular way.
On the facts of the case, the Court of Appeal confirmed the judge’s finding that the bank had deliberately made the relevant document available to Taberna with a view to its relying on it for investment purposes, but ruled that the bank was entitled to rely on a disclaimer in the document as an answer to the claim.