A claim for negligent misstatement is in an action brought at common law in tort (i.e., the law Governing wrongs). It arises when:
- Party A owes a duty of care to Party B;
- Party A makes a false/inaccurate statement to Party B;
- Party B relies on this statement, and
- Party B suffers a loss as a result.
A third party may also recover for a negligent misstatement in a reference-giving situation.
Background
In this case, the Claimant was an employee of the Defendant between 1995 and 2002. He left his role at the Defendant with a great reference and moved to Bath City College and subsequently the University of Bath as director of studies in 2008. As part of this role, he was expected to make visits to the Defendant. A few weeks after the commencement of his new role, the University of Bath received an email from the Defendant asserting that they would not be able to accept the Claimant on their premises because of their ‘very real safeguarding concerns for [their] students and there were serious staff relationship problems during his employment with [them]’. The Claimant was later dismissed from his new post at the University of Bath. The Court found that the statements in the email were false, and as such, the next test would be whether the Defendant owed a duty of care to the Claimant. By applying the test set out in this case, the Court found that:
- The damage was foreseeable;
- Relations between the Claimant and the Defendant were sufficiently proximate, fair, and reasonable; and
- There was a causal connection between the negligence surrounding the sent email and the damage suffered by the Claimant.
Background
In this case, two secondary school teachers’ job offers were withdrawn after the headmaster at the previous employment provided references in which he raised ‘some safeguarding issues’. The teachers denied any safeguarding issues and made a negligent misstatement claim against the headmaster. The Court found no dispute that the school owed the teachers a duty of care when providing the references. The remaining issue was whether there had been a breach of that duty. The Court ruled that the references provided were accurate and true and that the headmaster did not act negligently in the process in ascertaining the facts – he went about his task of gathering information in a conscientious manner and was careful to ensure his concerns about safeguarding had a proper evidential basis.
Comment
There is no standard of care to be exercised by a reasonable and fair reference writer, as it depends on the specific facts and circumstances. However, based on the cases above, the common features of the duty are (according to the Court in the case):
- Conducting an objective and rigorous appraisal of facts and opinion, particularly negative opinion;
- Taking reasonable care to be satisfied that the facts set out in the reference are accurate and true and that, where an opinion was expressed, there is a proper and legitimate basis for the opinion;
- Where an opinion derives from an earlier investigation, taking reasonable care in considering and reviewing the underlying material so that the reference writer is able to understand the basis for the opinion and be satisfied that there was a proper and legitimate basis for it; and
- Taking reasonable care to ensure that the reference was fair and not misleading, either by reason of what was not included or by implication, nuance or innuendo.
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Ronny Tang is an Associate in our expert Dispute Resolution team, specialising in defamation claims, contentious probate and inheritance claims, Trusts of Land and Appointment of Trustees Act 1996 claims, Equality Act 2010 claims and Protection From Harassment 1997 claims.
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