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'we can deliver!' can these words expose you to unlimited liability?

29 January 2010

If they’re made dishonestly they might…

In particular, if you’re a provider of outsourcing services and make a statement that you:

  • can deliver a project within certain prescribed timescales and    
  • are making this statement having carried out a proper analysis of the work involved

Then, if your customer believes you, you may well find that your contractual limits on liability will not protect you, as one supplier found to their cost in the long awaited decision between BSkyB and EDS this month.

 It was held by the Judge that the statements made by the supplier were not only incorrect but were also dishonest, since the person making them knew them to be wrong.  

This allowed the customer to claim for Fraudulent Misrepresentation (under the Misrepresentation Act 1967).  Since liability for Fraudulent Misrepresentation cannot be limited, when the project went over-budget and missed the deadline, the supplier’s £30 Million cap on liability was ineffective. 

Liability has yet to be decided (and the case may be appealed) but the misleading statements made by the supplier may well mean that it now faces liability of £200 Million or more. 

The lesson for suppliers – if you’re bidding on a project be careful what claims you make about your ability to deliver and never claim to have assessed the risk unless you truly have.  Given the recent history of IT projects delivered late and over budget in the public sector  I suspect there will be a number of customers scanning emails in the light of this case to see what optimistic IT providers might have promised.

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Richard Nicholas

Richard Nicholas

Partner and Responsible for In House Lawyers

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