Credit Suisse Life (Bermuda) Ltd v Ivanishvili & Others

Credit Suisse Life appealed against the findings of the Bermudian courts below on liability and quantum. Mr Ivanishvili cross-appealed, seeking to revive his misrepresentation claim (found below to be time-barred and mispleaded). The Privy Council allowed Credit Suisse Life’s appeal in part, adjusting the start date from which damages should have been calculated. Mr Ivanishvili’s cross-appeal was dismissed.

In addressing the cross-appeal, the Board held that it is not a legal requirement of a claim in deceit that the claimant be aware of the representation or understand it to have been made. Rather, the element of reliance or inducement requires only (i) that the representation cause the claimant to hold a false belief; and (ii) that the claimant because of holding that false belief act so as to suffer loss. Although the representation must therefore operate on the claimant’s mind, it is not necessary that the claimant be consciously aware of the representation when they act on it.

This finding marks a significant development in the law. It overturns an established line of English authority, considered in depth most recently by Picken J in Marme v NatWest Markets plc [2019] EWHC 366 (Comm) and Cockerill J (as she then was) in Leeds City Council v Barclays Bank plc [2021] QB 1027 and Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd [2023] EWHC 2759 (Comm). The judgment opens the possibility for an increase in claims for implied misrepresentation in contractual arrangements.

In upholding the finding below that Mr Ivanishvili’s misrepresentation claim was time-barred, the Board also deprecated two older principles of private international law. First, it suggested in obiter that Boys v Chaplin double actionability should not be the general choice-of-law rule for tort in common law jurisdictions. Second, the Board found that the doctrine of renvoi should not be adopted in English law save where required by binding precedent. In particular, it confirmed that renvoi has no role to play in tort cases. The Board considered that the High Court of Australia’s decision in Neilson v Overseas Projects Corpn of Victoria Ltd (2005) 223 CLR 331 – the only modern appellate decision extending renvoi to tort – was not “persuasive authority in this jurisdiction”.

Grant Kynaston appeared for Credit Suisse Life (Bermuda) Ltd, in a team led by Lord Falconer KC and Sebastian Isaac KC, instructed by Gibson, Dunn & Crutcher UK LLP.

The full judgment is available here. The Court's press summary is available here.