Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 111
CA20/12	OPINION OF LORD HODGE in the cause UNITED CENTRAL BAKERIES LIMITED Pursuer; against SPOONER INDUSTRIES LIMITED AND FORBO SIEGLING (UK) LIMITED Defender: ­­­­­­­­­­­­­­­­­________________

Pursuer: A. Clark QC; D Sheldon; Ledingham Chalmers LLP

First Defender: A Young QC; DLA Piper Scotland LLP

Second Defender: G. Clarke QC; M. McGregor: Simpson & Marwick LLP

29 June 2012

[1] The pursuer, United Central Bakeries Ltd ("UCB") operates an industrial bakery at Whitehill Industrial Estate, Bathgate. It bakes naan bread and other products. Dough is sprayed with rapeseed oil before being cooked in an oven at about 450° C. A conveyor belt takes the portions of dough into and through the oven and removes the cooked naan bread from the other side of the oven. Individual portions of naan bread sometimes catch fire during the cooking process and emerge from the oven on fire.

[2] UCB suffered a fire in the naan bread oven in 2001 and, advised by consulting engineers, installed a fire suppression system. In order to reduce wastage, in 2003 UCB engaged Spooner Industries Limited ("Spooner") to design, supply and fit a helical conveyor, known as a heliveyor, to transport cooked naan breads after they had come from the oven to an attic area in the factory from where they were sent to a packing area. UCB avers that Spooner was a specialist supplier of ovens, process controls and other technical services to the baking industry.

[3] In May and June 2003 UCB and Spooner entered into a contract for the supply and installation of the heliveyor. UCB avers that it was a contract to which either the Supply of Goods and Services Act 1982 or the Sale of Goods Act 1979 applied. Spooner supplied a twin-track heliveyor which was installed in the factory in August 2003. The belts of the heliveyor were made of "Ultraform" which was Polyacetal-POM (Polyoxymethyline) and was described in the manufacturer's data sheet as "highly crystalline thermoplastics".

[4] In December 2003 a fire broke out on the naan bread production line and the Ultraform belting caught fire. The tracks of the heliveyor were damaged but UCB's employees extinguished the fire before it caused further damage to the factory. The inner track was repaired with belting from the outer track. Spooner obtained replacement belting from Forbo Seigling (UK) Ltd ("Forbo") and the new belting was installed in the outer track of the heliveyor in January 2004.

[5] As more fully set out below, UCB avers that it was concerned that burning naan bread had caused the belting of the heliveyor to catch fire and it sought reassurance from Spooner and from Forbo that the belting was suitable for purpose.

[6] In November 2006 burning naan bread caused a fire to break out on the naan bread production line by igniting the belting material on the inner track of the heliveyor. The fire spread and destroyed part of the factory. UCB had to rebuild that part of the factory and replace or repair machinery. It suffered loss through the interruption of its business. It claims damages of £6,788,556 from Spooner and Forbo.

[7] This action arises out of the initial contract for the supply of the heliveyor and the later contract which UCB entered into with Spooner for the supply of replacement belting for the heliveyor after the fire in December 2003. The principal contractual claims against Spooner are to be the subject of a proof. The defenders in a debate sought to exclude from probation (a) UCB's case against them in delict which concerned alleged negligent misrepresentation in the context of the supply of the replacement belting and (b) averments about a collateral warranty.

The averments of misrepresentation

[8] The focus of the claim of misrepresentation is on statements made by Mr Sandy Grieve of Spooner in an email dated 22 June 2004 and by Mr Dennis Jackson of Forbo in a letter of 30 June 2004. The messages are set out in paragraphs [14] and [17] respectively. But, as Mr Alastair Clark QC for UCB submitted, it is necessary to see those statements in the context of the earlier communications between the parties. UCB avers that before and after the delivery of the replacement belting it raised with Spooner and Forbo the question of whether the correct material had been used for the belt and its concern that the belt would ignite on contact with burning naan bread. In particular UCB refers to the following communications.

[9] On 17 January 2004 Mr Steven Jeffrey, an engineer employed by UCB, sent to Mr Grieve, the chief engineer of Spooner's food division, an email which he copied to Mr Archy Cunningham, the Group Managing Director of UCB, in these terms:

"Sandy I have left numerous messages on your mobile phone mailbox as well as sent three e-mails just before Christmas that you have not replied to any, this is somewhat disappointing to say the least. I want someone from Spooner on site A.S.A.P. to help with answer the question, what cause the fire at the Heliveyor. I also want the material specification on the belting."

[10] On 19 January 2004 Mr Grieve replied as follows:

"I am somewhat surprised at your comments given that I've tried to be in touch and then been in constant communication with Archie up to the belt delivery last week.

I thought that I had provided top drawer free services to enable "trade price" supply of the spare belt and pushed delivery when it seemed to have stalled.

I further understood that you were getting the full specification of the belt from Dennis. [I'll get the full specification to you today].

When we last spoke I advised that there was no means for the Heliveyor to ignite itself with the only energy at the drive motor [which] is mounted outboard of the frame/belt.

It seemed to me then that the most likely cause was flaming debris from the Oven.

I will arrange to visit site to discuss next week."

Mr Dennis Jackson visited UCB's factory on 20 January 2004.

[11] Mr Jeffrey of UCB sent an email on 21 January to Mr Grieve of Spooner and copied it to Mr Cunningham. He stated:

"Sandy to enable us to install the C.I.P. system to the heliveyor can you tell me the flow rate of water required to clean the belting and at what temp the water should be to clean effectively.

Stevie

PS I had a visit from Dennis Jackson yesterday to review the belting and to check on delivery of the replacement belt, which arrived Monday morning."

[12] On 28 January 2004 Mr Jeffrey reported a test which UCB had carried out, using a blow torch to ignite a piece of the new belting. In an email to Mr Jackson of Forbo, which he copied to Mr Grieve of Spooner and to Mr Cunningham, he stated:

"Dennis thank you for the free samples of modular belting (re: our Heliveyor belting), we conducted the same test on the brand new belt as we did the belt that had bee[n] on line during the fire. We found that when we set the belt on fire deliberately the belt continued to stay lit, furthermore it intensified sending the section of belt up completely. We have a sample of modular belting that I sho[we]d you when your were on site from a another supplier that we conducted the same trials with and this belt seem to self extinguish."

[13] On about 26 February Mr Grieve visited UCB's factory to meet Mr Cunningham and Mr Jeffrey. On the same day Mr Cunningham sent Mr Grieve another copy of the email which I have set out in paragraph [12] above. On 1 March Mr Grieve sent an email to Mr Jackson of Forbo in these terms:

"Dennis,

I visited Archy last Thursday regarding a new enquiry and was surprised to learn that U.C.B. are still unhappy and or uncertain regarding your technical explanation about the belt fire they had before Christmas.

They are concerned that the new belt will catch fire if burning product travels on it from the oven.

They insist that the fire was probably caused with burning bread after it had already passed over the plastic bends leading to the heliveyor.

[THE PLASTIC BELT ON THE BENDS DID NOT CATCH FIRE !!]

From the technical specification and our various discussions I was certain that burning bread was highly unlikely to ignite the plastic modules.

Having visited Stevie/Archy and been advised of their "combustion trial" what are your thoughts? What do your technical guru's think?

Archy is a very important client who has a vast network of up and coming decision makers.

It is important to me that I advise him correctly."

[14] There is then a gap in the email exchanges until June 2004 when there was a flurry of messages. On 22 June at 17.23 hours Mr Jeffrey of UCB emailed Mr Grieve of Spooner stating that UCB had "still heard nothing with regards to the fire on the heliveyor last December 23^rd." At 17.48 hours on the same day Mr Grieve replied to Mr Jeffrey and copied his message to Mr Jackson of Forbo. He stated:

"Dennis Jackson had his technical people look into the fire and I am sure they concluded that the correct materials were used.

The belt should be impossible to set fire to with burning naan bread and the belt itself is unable to feed any fire which may start from, say Oven components!

However Dennis did say that he would "close-off" this incident through his Scottish agents.

We can be available to call-in with Dennis if that moves things forward.

Has our spray bar been fitted?

Is it able to control products/fat building-up?"

[15] That elicited the following response on 23 June from Mr Jeffrey to Mr Grieve of Spooner and Mr Cunningham of UCB, which was copied to Mr Jackson of Forbo:

"Sandy, can Dennis explain how when we place a naked flame next to his belt it goes up and also the fire intensifies, while when we done the same test on our white modular belt, the fire self extinguished [?] ..."

[16] Mr Cunningham of UCB then intervened at 10.54 hours on the same day by sending the following message to Mr Jeffrey and Mr Grieve, which he copied to Mr Jackson:

"Am not really happy with the supplier of this belt you and Dennis both seen with your own eyes that the belt caught fire. How can you comment as below when you witnessed Stevie showing you the belt caught fire!

The belt should be impossible to set fire to with burning naan bread and the belt itself is unable to feed any fire which may start from, say Oven components

I would also like to close this off however at this juncture I feel we are being fobbed off by Dennis and really that's not really acceptable. I would appreciate your help in this matter, I understand that you are a busy man but if you were in my shoes am sure that you would not be happy with the outcome of this report which really has went on too long.

Look forward to hearing from you"

[17] On 30 June 2004 Mr Jackson of Forbo wrote to Mr Grieve of Spooner in these terms:

"For the attention of Mr Sandy Grieve

Dear Sandy

With reference to our various telephone calls and e-mails regarding U.C.B-Scotland.

I have enclosed the data sheet for the material used on the belt supplied to UCB (Polyacetal - POM).

We process this material at a temperature of approximately 190 degrees C, and the data sheet is advising that a temperature of 164 degrees C is required to melt this material.

From the above we would have to assume for a NAAN Bread to melt the belt the above would need to be attained, which in my opinion would be very unlikely. Any oil or contaminants on the belt would obviously ignite at lower temperature.

With regard to the test conducted by Steve Jeffrey, this was carried out with a blowtorch, which would attain a much higher temperature, and ignite the belt.

In conclusion, the belt material is the same as always supplied on this application. The two original belts and the replacement belts were processed from the same thermoplastic granules.

I trust this meets with your requirements and look forward to hearing from you in due course."

[18] The data sheet which Mr Jackson attached to his letter described among other things the Ultraform which was a component of the belting. It stated:

"Polyacetal (POM)

Ultraform

Ultraform resins are highly crystalline thermoplastics. By virtue of their crystallinity, they have a narrow melting range, i.e. from 164 to 168^oC. The processing temperatures are generally of the order to 180 to 220^oC. At higher temperatures, the polymer melt commences to undergo thermal degradation. This results almost exclusively in the evolution of formaldehyde in ignitable concentrations at temperatures of 360-400^oC.

Ultraform mouldings can be ignited by applying a flame or sufficient heat. They continue to burn after the flame has been removed. In the initial stages, the rate of flame spread at the surface is slight but depends largely on the geometry of the part concerned. Ultraform melts may form burning drops."

[19] Mr Grieve sent the letter on to Mr Jeffrey of UCB. It was not disputed that Mr Jackson knew when he sent the letter that Mr Grieve intended to do so. UCB avers that Mr Grieve saw the letter in draft and amended it by adding "very" before "unlikely" in the statement of opinion in the fourth paragraph.

[20] UCB's pleaded case of negligent misrepresentation is that each of the defenders failed to take reasonable care not to represent and assure it that the belting material was suitable for use on the naan bread production line. In addition UCB avers that each of the defenders had a duty to take reasonable care to advise it that the belting material was unsuitable for use on the naan bread production line because of the risk that it could be ignited by naked flame from the burning product.

The defenders' submissions
[21] Mr Geoffrey Clarke QC for Forbo opened the defenders' challenge to UCB's case. He sought dismissal of the action so far as directed against Forbo because UCB had not relevantly averred that Forbo had breached any duty of care owed to it. A person was not liable in delict for causing physical damage by negligent misrepresentation unless either he possessed special skill and knowledge which he purported to apply in giving the advice or otherwise it was reasonable for the advisee to rely on the advice which he gave. He referred to Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, Mutual Life and Citizens' Assurance Co Ltd v Evatt [1971] AC 793, Caparo Industries plc v Dickman [1990] 2 AC 605, Berry Taylor (A Firm) v Coleman and Anr [1997] PNLR 1 (CA), and Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830. He referred also to Charlesworth & Percy on Negligence (12^th ed.) at paras 2.57 and 2.173, and Jackson & Powell, "Professional Liability"(7^th ed.) at paras 1.012, 1.014 and 2.055.

[22] The involvement of Forbo in any representation was confined to the letter of 30 June 2004. The statements of fact in that letter were true and were supported by the data sheet which was the document which UCB had requested. The expression of opinion that it was very unlikely that naan bread from the ovens would melt the belting was based on assumptions about UCB's processes about which Mr Jackson had no special knowledge or skill. UCB should have realised that Mr Jackson did not understand their process. All that Mr Jackson gave was careful and limited advice about the characteristics of the Ultraform. What he said did not amount to a representation that the belting material was suitable for the purpose for which UCB proposed to use it. It was not reasonable for UCB to rely on the statement of opinion as a representation of suitability. In any event there were no relevant averments that that statement was incorrect because UCB carried on the process, in which burning naan bread frequently came out of the oven, for a further two and a half years before the fire occurred in November 2006.

[23] In his note of argument he submitted that it was not fair, just or reasonable that a duty of care be imposed on Forbo. But in his oral submissions he concentrated his challenge on (a) whether a misrepresentation had been relevantly pleaded and (b) the need to plead a special skill or reasonable reliance.

[24] Mr Andrew Young QC for Spooner adopted Mr Clarke's submissions. He pointed out that UCB's case was twofold. It complained of a negligent act, namely misrepresentation, and a negligent omission, namely a failure to advise that the belting was unsuitable. It was important to separate out what each defender did and said. Mr Grieve did not profess any technical knowledge or expertise but relied on Forbo to provide such information which he passed on to UCB. While he had made a statement in the email of 22 June, it was clear that UCB did not rely on it but demanded an explanation which led to Forbo's letter of 30 June. That letter was from Forbo and Mr Grieve's editing of it when it was in draft was irrelevant. In any event, the challenged sentence was an expression of opinion on a technical issue which was within UCB's knowledge and not a representation of suitability. What UCB had wanted was the data sheet. UCB did not aver what it took from the data sheet.

[25] Mr Young moved the court to exclude from probation the case of negligent misrepresentation.

UCB's response
[26] Mr Alastair Clark QC in answering these challenges submitted that the statements which UCB founded on had to be seen in their context. It was only exceptionally that the court could dispose of cases of negligence on the basis of relevancy: Miller v South of Scotland Electricity Board 1958 SC (HL) 20. The pleaded case was not at the frontier of negligence. It concerned negligent misstatement giving rise to physical damage to property and could be approached by applying the neighbourhood principle of Donoghue v Stevenson. The tract of authority stemming from Hedley Byrne was of no relevance. He referred to Customs & Excise Commissioners v Barclays Bank plc [2007] 1 AC 181, Marc Rich & Co v Bishop Rock Ltd [1996] 1 AC 211 and Professor Joe Thomson, "Delictual Liability" (4^th ed.) at para 4.11. The defenders were suppliers of the belting and were responding to concerns expressed by the purchaser as to its suitability for use on the heliveyor in the naan bread production line. He referred to Vacwell Engineering Ltd v BDH Chemicals Ltd [1971] 1 QB 88 and Andrew Weir Shipping Ltd v Wartsila UK Ltd and Anr [2004] EWHC 1284 (Comm) in support of his contention that there was also a duty to warn of a danger.

[27] This case did not raise questions of indeterminate liability: cf. Sutradhar v National Environmental Research Council [2006] 4 All ER 490. If one adopted the threefold analysis in Caparo v Dickman, the averred facts met the criteria of proximity, foreseeability and the whether it was fair, just and reasonable to impose a duty of care. Using the "assumption of liability" analysis produced the same result. The question whether it was reasonable for UCB to rely on the representations did not arise in relation to the existence of a duty of care in this case. It would be relevant only in connection with a question whether there was contributory negligence: Gran Gelato Ltd v Richcliff (Group) Ltd [1992] Ch 560. If contrary to his submission the reasonableness of reliance was in issue, that was purely a question of fact: Berry Taylor v Coleman (above) Staughton LJ at p.7.

Discussion
[28] This case is concerned with physical damage to property allegedly caused by the defenders' negligent misstatements. We are not dealing with a claim for pure economic loss where the courts have imposed strict limits on existence and ambit of any duty of care because of policy concerns over what Cardozo CJ in Ultramares Corp v Touche (1931) 255 NY 170, at p.179 famously described as "a liability in an indeterminate amount for an indeterminate time to an indeterminate class."

[29] We are concerned with the ingredients of a case of a negligent misrepresentation by A to B which results in physical damage to B's property in circumstances in which A addressed his statements to B or provided them to C in the knowledge that they would be passed on to B. This case does not raise issues of policy at outer margins of liability for negligent misrepresentation. It is not concerned with a case of negligent misstatement causing foreseeable damage to D's property where on grounds of legal policy it is held that A did not owe a duty of care to D. Such a case is Marc Rich & Co v Bishop Rock Ltd (above), in which the House of Lords applied the threefold test of foreseeability, proximity and whether it was fair, just and reasonable to impose a duty of care on a classification society in relation to cargo owners when granting and maintaining classification of a ship.

[30] In his admirably clear book, "Delictual Liability" (above) at para 4.11 Professor Joe Thomson said this:

"A may make a statement to B which causes B physical harm or damage to B's property: for example A tells B that it is safe to drink contaminated water. A will owe B a duty of care if it is reasonably foreseeable that B will suffer physical harm or damage to his property if A's statement is made carelessly. This is a simple application of the Donoghue neighbourhood principle."

Professor Thomson went on to contrast that simple state of affairs with the more complex issues which arise when the courts have to determine whether A owes a duty of care to B not to make careless statements which cause B pure economic loss.

[31] The authors of Charlesworth & Percy (12^th ed.) drew a similar distinction at para 2.57 in which they stated:

"Actions in respect of negligent words are treated differently according to whether the words cause financial or physical damage. Negligent misstatements causing financial damage tend to raise the fear of indeterminate liability, and a consequent need to impose strict limits on the existence or ambit of any duty ... However words are likely to be treated in the same way as positive conduct where reliance on the words leads to physical injury. The range of potential victims will usually be limited, and unless there is some other policy concern a duty may be imposed without difficulty."

[32] It would nonetheless be wrong to overstate the dichotomy between statements which give rise to physical damage and those which cause pure economic loss simply because the law seeks to control the extent of liability in the latter case.

[33] The neighbourhood principle which has developed from Donoghue v Stevenson requires both proximity and foreseeability. In many cases those concepts overlap as the obvious directness of the effect of A's act or omission on B means that A ought reasonably to have B in contemplation when deciding on his actions. "Reasonable foreseeability of harm is usually enough ... to generate a duty of care": Customs & Excise Commissioners v Barclays Bank (above), Lord Hoffmann at para 31. This can readily be seen in standard cases of negligence against the driver of a vehicle, an employer operating an unsafe system of work, or the occupier of property or the manufacturer of goods which pose a danger. In such cases the court does not need to consider proximity separately from reasonable foreseeability and judicial precedent has answered the question whether it is fair, just and reasonable to impose a duty of care. But where there is foreseeability without proximity "in the sense of a measure of control over and responsibility for the potentially dangerous situation," the law will not impose a duty of care to avoid personal injury or physical damage to property: Sutradhar v Natural Environment Research Council (above). Lord Hoffmann at paras 32 and 36.

[34] It is correct, as Mr Clark submitted for UCB, that a supplier will frequently owe a duty to take reasonable care in relation to statements which he makes to the recipient of the goods as to the suitability or safety of the goods which he has supplied. In certain circumstances he may have a duty to advise or warn of potential dangers of which he ought to be aware. The cases of Vacwell Engineering Ltd and Andrew Weir Shipping Ltd support that contention.

[35] Whether a negligent misrepresentation causes physical damage or pure financial loss, several issues are common to both circumstances because both share the mechanism by which the harm results. It appears to me that it is these common issues, rather than questions about whether it is fair just and reasonable to impose a duty of care which are central in this case.

[36] I consider that there are three common issues in cases involving negligent misstatement, whatever harm results.

[37] First, in assessing whether a duty of care exists, the context in which a statement is made is important. The maker of a casual statement in a social or other informal context may not owe a duty of care in relation to its accuracy while a person making the same statement in a business or professional context may. See Hedley Byrne, Lord Reid at pp.482-3, Lord Morris of Borth-y-Gest at p.494. The relationship between A and B differs in those contexts. Both proximity and foreseeability may depend on context.

[38] Secondly, A's ability to foresee that harm may result from a careless statement will depend on his awareness that B is likely to act on the statement. B's reliance on A's statement is relevant to causation as the statement must induce B to act or refrain from acting and so suffer the injury or damage to his property. But the objective likelihood of that reliance is relevant to the existence and ambit of A's duty of care because it affects both proximity and reasonable foresight. In my view the reasonableness of B's reliance is a factor which should be taken into consideration in assessing that objective likelihood. It is a question of mixed fact and law.

[39] Thirdly, where A knows or ought to know that B is trusting him or relying on his skill and judgement, he has the three courses open to him that Lord Reid set out in Hedley Byrne at p.486, namely

"He could keep silent or decline to give the information or advice sought: or he could give an answer with a clear qualification that he accepted no responsibility for it or that it was given without that reflection or inquiry which a careful answer would require: or he could simply answer without any such qualification."

If A adopts the last course the law will impose on him a duty to take reasonable care in making his statement to B. Thus we must examine the statement in its context to ascertain its meaning and whether it is qualified in any way.

[40] In summary the court in determining the existence and ambit of a duty of care has to assess (i) the context in which A made the statement or statements, (ii) the foreseeability of B's reliance on the statements and (iii) the meaning of any representation.

[41] The alleged representors, Spooner and Forbo, were the suppliers of the belting to UCB either directly or indirectly. By the time the alleged representations were made, the belting had been supplied and installed. UCB was concerned to know the cause of the fire in December 2003 as it knew that the replacement belting was the same as that which had caught fire on that occasion. It is certainly possible that UCB would interpret the answer to its enquiry as a representation of suitability for purpose. I do not think that the question whether what Spooner and Forbo said amounted to a representation as to suitability can be determined as a question of relevancy by a reading of the written communications between the parties when the prior discussions and meetings which UCB avers may assist the proper understanding of the alleged representations.

[42] It is not appropriate that I express views on the merits of questions which have to be considered at a proof. They may include (i) whether each of the defenders was aware that UCB was asking a serious question and that the answer would be likely to influence its decision whether to retain the belting in use on its naan bread production line, (ii) whether the statements by both Spooner and Forbo in their context amounted to a representation of suitability for purpose, and (iii) whether what they said was a misrepresentation at all. These questions cannot be determined as a matter of relevancy.

[43] Similarly, I consider that UCB's assertion that the defenders were under a duty to advise that the belting was unsuitable must be judged in the context of the exchanges which occurred between the parties. Spooner's defence that it had no technical knowledge and was passing on Forbo's views also cannot be determined as a matter of relevancy, particularly when it had acted with Forbo to reassure UCB and had altered the draft of Forbo's letter of 30 June 2004. Thus the case of negligent misrepresentation must go to proof before answer.

Unilateral undertaking or warranty
[44] UCB also avers in article 8 of condescendence that the defenders had given a unilateral undertaking or warranty "that burning naan bread would not cause the replacement belt to ignite" and that that amounted to an undertaking that the belting material was suitable for use on the naan bread production line. Mr Clarke and Mr Young challenged the relevancy of this claim.

[45] I am satisfied that those averments are irrelevant for two reasons. First, it was not clear how the alleged undertaking is said to have arisen. While it may be straightforward to plead delictual duties which operate in parallel to contractual duties, it is clearly more difficult to infer the existence of contractual obligations from the existence of delictual duties. Nothing is averred to set up such a contractual warranty. UCB does not plead the breach of any implied term under the 1982 and 1979 Acts. Section 11D(1) of the 1982 Act provides:

"Except as provided by this section and by section 11E below and subject to the provisions of any other enactment, there is no implied term about the quality or fitness for any particular purpose of goods supplied under a contract for the transfer of goods."

Thus, if as UCB avers the contract is governed by the 1982 Act, this provision would exclude the implication of the undertaking or warranty. Similarly section 14(1) of the 1979 Act provides:

"Except as provided by this section and section 15 below and subject to any other enactment, there is no implied term about the quality or fitness for any particular purpose of goods supplied under a contract of sale."

Accordingly, if the 1979 Act applies, as UCB pleads as a fall back, that provision excludes the implication of the undertaking. I infer that UCB seeks to set up an independent undertaking or warranty. But it does not plead any basis for a separate agreement outside the contract which is governed by either the 1982 Act or the 1979 Act.

[46] Secondly, and in any event, the averred communications taken at their highest do not amount to a warranty that burning naan bread would not cause the belting to ignite.

Conclusions
[47] As I am persuaded that UCB's case of a unilateral undertaking or warranty is irrelevant I will exclude from probation the averments in Article 8 of Condescendence. Otherwise, I consider that it is necessary to establish the facts at proof before deciding the merits of UCB's case of negligent misrepresentation. I will therefore have the case put out by order to determine further procedure and in particular the scope of the proposed proof.