Nicholas Braslavsky QC and Andrew Grantham were recently successful in the Court of Appeal in the landmark decision of Webster v Liddington  EWCA Civ 560 in which the Court of Appeal held that medical practitioners could be liable in damages for misrepresentation when the content of manufacturer’s literature provided to prospective patients prior to them undergoing treatment was materially false in the absence of an express disclaimer.
The case involved a class action brought by over 50 claimants who alleged that they had been induced to undergo a course of innovative non-surgical cosmetic treatment known as Isolagen. The treatment involved the removal of cells from the patient, cultivating them in bovine calf serum and then re-injecting them into the patient’s face. The manufacturer’s literature claimed that the process involved the reinjection of only the patient’s own cells. In fact, there would be small quantities of bovine material. At first instance HHJ Platts held that the medical practitioners had adopted the content of the literature as their own representations and that the representations were materially incorrect.
On appeal two issues arose. First, whether the medical practitioners had adopted the content of the literature as their own representations given the absence of any express warranty as to the truth of such statements; and second, whether those representations were materially false given the small quantities of bovine material that would be left in the material injected into the patients.
The Court of Appeal reconsidered the law both concerning the adoption of third party statements and the test for falsity of representations in what is clearly a landmark decision: the implications are potentially extremely serious. Any person with access to superior information who hands over literature produced by a third party with the objective of inducing a person to contract with him may be liable for the content of that literature in the absence of an express disclaimer. The motto is clear: the importance of a suitably worded disclaimer cannot be overstated.”
A copy of the judgment can be found here.