2.8.5Crime and Punishment

It is clear that the statutory provisions of the U.K. Misrepresentation Act 1967 and the Irish Sale of Goods and Supply of Services Act 1980 decree that Justice is best served by ensuring that the victim does not suffer loss as a result of misrepresentation.

Justice to the representor is imparted (unfortunately to the detriment of the representee) by the balancing proviso that he will not be held liable to the extent of damages for fraudulent misrepresentation if he proves that he had reasonable grounds to believe, and he proves that he did believe up to the time that the contract was made, that the facts represented were true.

While the defendant, in an Action based on Statutory Misrepresentation, may feel somewhat aggrieved that he has a liability to damages equivalent to those for Fraud, Justice would hardly be served if an artificial differential, with respect to liability to damages between non-fraudulent and fraudulent misrepresentation, was created at the expense of the victim.

The real differential issue that should be addressed is one of Crime and Punishment.

is a Crime.

Notwithstanding the fact that a plaintiff’s Action may have been based on Statutory Misrepresentation, if, on the evidence presented, the defendant’s misrepresentation is proved to have been fraudulent, then a differentiating stigma should attach to such misrepresentation.

The differential liability to damages between fraudulent misrepresentation and non-fraudulent misrepresentation would more justly be addressed by superimposing punitive damages on the guilty party in the case of fraudulent misrepresentation.

Whether these punitive damages would be wholly or partially awarded to the plaintiff, or to some Charity, or to the State, and whether a prison term should also be imposed, would be at the discretion of the Court, having regard to the particular circumstances of the case.

But the gravity of Fraud should not be disregarded by deferring to the customary sanitary euphemism used by the Financial Services Industry and their Self Regulating Organisations ———— Mis-selling. (See 'What is Mis-selling?', with respect to the U.K. Regulatory Regime in Section 2.5.7, The Whitewash Road.)

There should, in Justice, be some punishment to fit the crime.

In this regard, some political backbone
, in the matter of invoking the fraudulent misrepresentation provisions of the Financial Services Act 1986 and of the more recent Financial Services and Markets Act 2000, in the United Kingdom, and, likewise, in the matter of invoking the false pretences provisions of the Larceny Act 1916 and the deception provisions of the Criminal Justice (Theft and Fraud Offences) Act 2001, in Ireland, is long overdue.

(See Section 2.5.1 and Section 2.3.6.)


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