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Wed August 17 2022

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15 Mar 10 (Foodco. UK LLP (T/A Muffin Break), Caskade Caterers Limited (T/A KFC), Panesar Enterprise Limited (T/A Burger King) and Others V Henry Boot Developments Ltd., [2010] EWHC 358 (Ch)

Henry Boot, (HB), opened a new Motorway Service Area (MSA) at junction 11 of the M20 called “Stop 24”. They commissioned a firm of planners and development economists called Roger Tym & Partners to produce a report on the anticipated visitor numbers for the site. Roger Tym & Partners estimated that there would be a passing daily traffic flow of 37,000 vehicles in 1999 increasing to 46,000 by 2010; a turn in rate of 15 per cent and an average occupancy of 1.96 persons per vehicle. On this basis they estimated visitor numbers at 4.67 million per year increasing to 5.5 million by 2010. They had produced a similar report in 1996, and the figures in the later report were in line with the original predictions. HB’s MSA was only 2 junctions away from Eurotunnel.

HB used the figures in the report and produced marketing material for prospective tenants, which predicted 88,000 visitors a week. The actual visitor numbers proved to be only a 10th of what had been anticipated. The claimants were all tenants which had entered into lease agreements with HB. Some of them did not complete the leases, whilst others took occupation and gave up. They all claimed that they had been induced to enter into the leases because of HB’s misrepresentations about the estimated visitor numbers, the extent of the motorway signage which would be provided and the facilities which the site would offer. They alleged that these misrepresentations had been made fraudulently, or, alternatively, that they had been made without reasonable grounds for believing that they were true.

The tenants complained that Henry Boot had described the facility as a “Motorway Service Area” or MSA, but the Highways Agency refused permission for the blue signs to have “Stop 24” on them, but, instead should say “Port Early Arrivals and Services” and not that it was a Motorway Services Area. . The signs included symbols for the services provided.

The claimants’ leases stated that:

“The Tenant acknowledges that it is entering into this Agreement on the basis of the terms hereof and not in reliance upon any representation or warranty whatsoever whether written or oral expressed or implied made by or on behalf of, [Henry Boot] (save for written replies given by, [Henry Boot’s] solicitors to the enquiries raised by the Tenant’s solicitors) and the documents produced to the tenant’s solicitors prior to the date of this agreement.”

The tenants claimed that Boot was guilty of fraudulent misrepresentation.

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