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96 SPATA:SPN Master pages 14/09/2009 13:21 Page 2
Barrister Richard Osbourne looks in detail at
a recent Court of Appeal judgement on a
case of a pool customer who challenged
SPATA over its website claim that work
from members was covered by a warranty
he increasing importance of principle that whether
websites in communications responsibility to protect against
between companies and the public pure economic loss has been
is likely to provide fertile ground assumed depends upon objective
for lawyers in the coming years. The Court assessment of the communications which The decision indicates that those
of Appeal addressed the question of pass between the Claimant and the bringing claims against websites for
whether trade association SPATA owed a Defendant against the full relevant negligent misstatements may face an uphill
duty of care to those who relied on its background. The Court was clear that in battle. SPATA’s website offered advice (i.e.
website statements. carrying out such an assessment no which installers had passed its checks), to a
A split decision suggested that different principles applied to websites specific class of people (potential
Claimants will have difficulty in establishing than to any other form of communication. purchasers of swimming pools) with the
duty of care. On a majority decision, no duty was intention that they would rely on it in
Three years ago, Mr and Mrs Patchett found to exist. deciding what to do. Despite the claim
decided to have a swimming pool installed The Master of the Rolls identified two that no different considerations apply to
at their home. Mr Patchett went to the reasons. Firstly, although the website was websites in assessing duties of care, it is
SPATA website which explained members directed at a class of people which difficult to see what other factor led to the
had their financial record, experience and included the Patchetts, he found ‘it difficult denial of proximity.
quality of work fully vetted prior to to classify their contact in terms of a Further, as the dissenting judgement of
admission and that members were covered relationship, whether special or Lady Justice Smith pointed out, it seems
by a warranty guaranteeing that otherwise… I do not think there is generous to conclude that the website
installation would be completed ‘come sufficient proximity between the parties to ‘urged’ further enquiry. Although it
what may’. give rise to a duty of care.’ undoubtedly offered further information, it
Mr Patchett chose three companies from Secondly, he identified the statement of didn’t suggest that it was necessary.
the website’s list of members and obtained Lord Oliver in Caparo Industries Plc v A customer who felt capable of
quotes, subsequently contracting with one Dickman [1990] 1 AC 605 that an indicator negotiating with a contractor unassisted
of them – Crown. Midway through the of a Hedley Byrne relationship was that (the first instance Judge found Mr Patchett
works, Crown became insolvent and it “advice communicated is likely to be acted a capable businessman) would probably
emerged its work was defective. Crown on by the advisee… without further have concluded that he did not need any
had in fact only been an affiliate member enquiry”. He held that it was not further information, as the website had
of SPATA, a concept not explained on the foreseeable that SPATA’s advice would be provided a members list.
website, and had not been subjected to relied upon without further enquiry. This It may also prove to be significant that
the SPATA checks, and was not covered by was because the website ‘urged although in this instance the offer of
the warranty. independent enquiry’ as it ‘advised’ that a further information was displayed on the
The Patchetts incurred expense in SPATA information pack be obtained. The same webpage as the representations as
engaging an alternative contractor. basis for this was that the website stated: to SPATA’s checks on members, this was
It was accepted the Patchetts had relied “SPATA supplies an information pack not cited as a consideration in the
upon SPATA’s statement that Crown was a and members lists which give details of judgments. George Woods of 4 Pump
member (together with the subsidiary suitably qualified and approved installers in Court, who acted for the successful
statements regarding the requirements of the customer’s area. Defendant, commented: “The Judges
membership) in deciding to work with The pack includes a Contract Check List appear to use ‘Website’ and ‘Webpage’
Crown. Given that it was negligent to which sets out the questions that the interchangeably. There may accordingly be
state that Crown was a member when it customer should ask a would-be tenderer scope to argue in future cases that a
was not, they argued, they should be put together with those which must be asked disclaimer on one webpage of a website
in the position they would have been had of the appointed installer before work prevents a duty from arising in relation to
the statements not been made. This starts and prior to releasing final payment.” representations on another webpage. I do
meant compensating them for the inflated The majority determined that this made not believe that this was intended by the
cost to them of Crown’s involvement in clear that the website was merely the majority but it is now available as an
the project. ‘first step in a process’ of obtaining argument.”
The issue was whether SPATA owed the information, and it was unforeseeable that It seems that those relying on
Patchetts a duty of care. a party would rely solely on the website’s statements made on the web would be
The Master of the Rolls began from the list of members. well advised to tread very carefully. spn
88 Swimming Pool News October 09 Digital edition available at
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