Web Site Representations and a Duty of Care

In Patchett v Swimming Pool & Allied Trades Association Ltd [2009] EWCA Civ 717, the Court of Appeal has effectively restricted the scope of any duty of care arising from the use of a Web site as a source of advice. The effect of the ruling may well be to greatly increase the importance of any disclaimers or limitations appearing on the site. 

Facts

Mr Patchett had sought a contractor to build a swimming pool and complete associated landscaping work. He had consulted the SPATA Web site and had contacted a number of persons named there as members of SPATA. He had read and relied on a number of representations on the site, including one that read as follows: 

SPATA pool installer members are fully vetted before being admitted to membership, with checks on their financial record, their experience in the trade and inspections of their work. They are required to comply fully with the SPATA construction standards and code of ethics, and their work is also subject to periodic re-inspections after joining. Only SPATA registered pool and spa installers belong to SPATASHIELD, SPATA‘s unique Bond and Warranty Scheme offering customers peace of mind that their installation will be completed fully to SPATA Standards – come what may!

Regrettably, the contractor he selected became insolvent and Mr Patchett was left to find another to complete the works at an additional cost of £44,000. Moreover, the contractor was not a full member of SPATA but an associate member and, as such, was not covered by the bond and warranty scheme.

Mr Patchett’s evidence was that he told the contractor that he was aware that his company (Crown) was a member of SPATA. He did not, however, make any inquiries about the SPATASHIELD cover. He had no details from SPATA  as to the nature or terms of the cover and he appears never to have discussed SPATASHIELD with the contractor. None of the documents provided to him by Crown make any mention at all of SPATA membership or of the SPATASHIELD bond and warranty.

 The SPATA Web site also included a suggestion that:

SPATA supplies an information pack and members lists which give details of suitably qualified and approved installers in the customer’s area. The pack includes a Contract Check List which sets out the questions that the customer should ask a would-be tenderer together with those which must be asked of the appointed installer before work starts and prior to releasing the final payment

This statement was regarded by the Court of Appeal as of great significance. Mr Patchett did not in fact seek an information pack or a members list.  

Ruling

 The judgment includes a brief analysis of the legal principles which might apply. In particular, the nature of the relationship, issues of proximity and hedley Byrne v Heller  are canvassed.

At first instance, His Honour Judge Worster said: 

Looking at the material objectively and in context, the website is to be seen as a first step in a process. That is how it reads, and viewed objectively that is how SPATA present it. The information pack is not said to be an essential next step, but that is the step which it obviously encourages. It would be particularly surprising to find a customer rely on the information as to the SPATASHIELD scheme without obtaining a copy of the policy, or some more detailed document confirming the terms of the cover 

The Master of the Rolls and Scott Baker LJ agreed. As Lord Clarke of Stone-cum-Ebony MR put it: 

In all the circumstances, for my part, I do not think that it can fairly be held that SPATA assumed a legal responsibility to the claimants for the accuracy of the statements in the website without the further enquiry which the website itself urged. It is common ground that, if the claimants had asked for and obtained an information pack, they would have learned the true facts. They would have learned that Crown was only an affiliate member and that, as such, Crown was not the subject of the checks referred to and its customers would not have the benefit of the SPATASHIELD bond or warranty. In these circumstances there was not a sufficient relationship of proximity between SPATA and the claimants for these purposes and it would not be fair just and reasonable to hold that SPATA owed them a duty to take care. Moreover, it is I think of some relevance that it is not suggested that to hold that SPATA owed a duty of care to the claimants would only be only a small increment or development from existing case law. It would I think be an unwarranted extension of that law, even though nothing I have said is intended to detract from the conclusion that it is important that information put into the public domain is accurate. 

A dissenting judgment from Lady Justice Smith is essential reading. She stated: 

It seems to me that the essential message of the website, as it would be understood by the ordinary reasonably careful person who intended to install a swimming pool, is that SPATA is a responsible organisation who can be relied on for advice as to which installers are competent and financially sound. The website presents SPATA as trustworthy. It presents itself in the role of a regulator, setting standards (see paragraph 5) and vetting installers before they are allowed into membership (see paragraph 6). It is entirely foreseeable that the intended pool purchaser would rely on SPATA as being knowledgeable and trustworthy.

Click here for the full judgment  

There is an excellent analysis of the case by Struan Robertson on OUT-LAW.com – click here