Giving information
Scheme members can often be bombarded with pensions information. There is an increasing amount of disclosure required by statute; the Occupational Pension Schemes (Disclosure of Information) Regulations 1996 expanded the amount of information which must be disclosed by trustees.
The obligations of an employer are contained in the Employment Rights Act 1996, s1. It must disclose "any terms and conditions relating to ... pensions and pension schemes".
In addition, there is often a lot of information which bears all the hallmarks of advice, for example an employee being given information on various permutations related to his possible redundancy, taking into account any severance packages and augmentation through the pension scheme.
Another feature of pensions information is that there is rarely only one party involved in producing the information. The risk of chinese whispers developing increases in direct proportion to the number of individuals in the chain of communication. For example, the benefit structure will be laid down in what may be a complex document, the trust deed and rules. Within the confines of those rules the trustees and employer will develop certain policies, often based on discretion and actuarial advice. There may be certain recommended factors for commutation and early retirement and set ways of dealing with transfers in and out. These practices will tend to change over time, e.g. following the introduction of, or changes to, the minimum funding requirement. Next in the chain may be an in-house pensions manager, who may then have a team of administrators working under him with various levels of experience. Often the pensions manager or one of his team will be asked to pass on pensions information to the personnel manager or the manager responsible for a particular employee or group of employees. There may be a third party administrator relying on the accuracy of information provided to it by an employer. The scheme actuary (or the lawyer) may be required to draft or check certain information before it is passed to members.
The nature of the information can, similarly, lead to difficulties. The idea of a final salary scheme, accruing 60ths for each year of service may seem pretty straightforward but to complicate matters GMPs, AVCs, revaluation, commutation and early retirement factors often need to be considered as well. It is perhaps not surprising that the recipient of information may be confused about what it means; the provider of the information might also lack a clear grasp of what is intended to be communicated.
In his Annual Report 1993/94 the Ombudsman commented that:
"59. Many complaints to me originate in simple lack of communication. Written documents can be unclear, incomplete, unattractively presented. The technical language of the pensions industry is daunting or misleading for the ordinary scheme member. A particular gem much in favour this year has been "staggered vesting". The lay reader could be excused for turning to the medical, rather than the financial, press for enlightenment on this one."
Theory
In order to put the Ombudsman's approach into context, it is worth considering the various legal remedies and causes of action which may arise when wrong information is provided.
Tort (negligence)
For many years the courts recognised a duty of care to avoid making careless statements which resulted in physical harm, e.g. where a doctor negligently certified the plaintiff to be of unsound mind which led to his detention in a mental home ( [1927] 96 LJKB 1056) and where an architect was careless in telling a bricklayer how to carry out work on a building which resulted in the bricklayer being injured when a gable end collapsed on him ( [1962] 2 QB 533).
However, it was a long time before any action could arise in respect of pecuniary damage resulting from the careless provision of wrong information. For example in [1893] 1 QB 491, Bowen LJ said, referring to the possibility of a surveyor being liable to a mortgagee in relation to progress certificates given to a builder which the mortgagee relied on:
"The law of England does not go to that extent: it does not consider that what a man writes on paper is like a gun or other dangerous instrument, and, unless he intended to deceive, the law does not, in the absence of contract, hold him responsible for drawing his certificate carelessly".
Since then careless statements have become smoking guns. The watershed was provided by the House of Lords in [1964] AC 465. It was held that in principle there was no distinction to be made between financial loss and physical loss. Whenever a special relationship came into existence, a duty to take care in the making of statements would usually arise. Since 1964 there have been many cases testing the bounds of where a special relationship (often referred to as a relationship of proximity or neighbourhood) has arisen.
Of most relevance to employers is [1994] 3WLR 354 where the House of Lords held that an employer giving a reference for a former employee owed a duty of care in the preparation of the reference. Lord Goff referred to in which it was said that a duty of care will arise where someone with a special skill applies that skill for the assistance of another person who relies upon such skill. Lord Goff said (at p368):
"It is, I consider, clear from the facts of itself that the expression "special skill" is to be understood in a broad sense, certainly broad enough to embrace special knowledge. Furthermore Lord Morris himself, when speaking of the provision of a statement in the form of information or advice, referred to the defendant's judgement or skill or ability to make careful enquiry, from which it appears that the principle may apply in a case in which the defendant has access to information and fails to exercise due care (and skill, to the extent that this is relevant) in drawing on that source of information for the purposes of communicating it to another ... it is my opinion that an employer who provides a reference in respect of one of his employees to a prospective future employer will ordinarily owe a duty of care to his employee in respect of the preparation of the reference. The employer is possessed of special knowledge, derived from his experience of the employee's character, skill and diligence in the performance of his duties while working for the employer ... the provision of such references is a service regularly provided by employers to their employees; indeed, references are part of the currency of the modern employment market."
If there is special skill and knowledge involved in giving a reference to a prospective employer of a former employee, then there seems no reason why it cannot also be said that the pensions knowledge and expertise of an employer (or pensions manager or administrator) is sufficiently "special".
Over the years a number of tests have been suggested by the courts for the purposes of determining whether a duty of care has arisen in any particular case regarding wrong information. The various strands were drawn together by the Court of Appeal in The Times 4 March 1998. Sir Brian Neill noted that the search for the best test had followed three separate but parallel paths:
(a) the threefold test in [1990] 1 AC 831 -
(i) was it reasonably foreseeable that the plaintiff would suffer the kind of damage which occurred?
(ii) was there sufficient proximity between the parties?
(iii) was it just and reasonable that the defendant should owe a duty of care of the scope asserted by the plaintiff?
Some difficulties involved in this threefold test were pointed out by the House of Lords in [1990] 2 AC 605 where Lord Oliver thought it was difficult to resist a conclusion that what have been treated as three separate requirements are in most cases merely facets of the same thing.
(b) the assumption of responsibility test ()
(c) the incremental approach as suggested by an Australian judge in [1985] 157 CLR 424 who thought that the law should develop normal categories of negligence incrementally and by analogy with established categories. The House of Lords in [1991] 1 AC 398 endorsed the incremental approach.
Sir Brian Neill concluded that all three approaches had been approved by the House of Lords in recent years and thought that if the facts and policy considerations involved in any particular case were properly evaluated, the different approaches should produce the same result. He drew together a number of factors from the authorities to be taken into account in considering whether the duty of care is present:
(i) the precise relationship between adviser and advisee. This may be a general relationship or a special relationship which has come into existence for the purpose of a particular transaction
(ii) the precise circumstances in which the advice came into existence
(iii) the precise circumstances in which the advice was communicated to the advisee and for what purpose
(iv) the presence or absence of other advisers on whom the advisee would or could rely
(v) the opportunity, if any, given to the adviser to issue a disclaimer.
The above analysis may apply to third party administrators, employers or pension managers giving information to scheme members and their dependants or even to individuals wishing to transfer into a scheme.
Causation is another essential element in any negligence action. The issue of causation can be regarded as comprising two strands:
(i) was the plaintiff's loss really caused by the negligence of the defendant?
(ii) did the defendant's negligence actually make any difference to the outcome?
As is considered later in this paper, the question of causation is often the central issue in Ombudsman cases dealing with wrong information. The leading case on causation is now [1996] 3 WLR 87 (the case is sometimes referred to as ).
The defendant valuers had valued a property for the plaintiff bank which was considering a large loan to be secured by a first legal charge on the property. On the basis of a favourable valuation, the bank made the decision to lend. The borrower defaulted and the security property rapidly devalued in the recession.
The House of Lords made an important distinction between a duty to provide information to enable someone to decide upon a course of action and a duty to advise another as to what course of action he should take.
In the former case, the person must take reasonable care to ensure that the information is correct and, if he is negligent, he will be responsible for all the foreseeable consequences of the information being wrong.
In the latter case, the adviser must take reasonable care to consider all the potential consequences of the course of action and, if he is negligent, he will be responsible for all the foreseeable loss which is the consequence of the course of action having been taken.
The House of Lords decided that the scope of the valuer's duty rendered the valuer responsible for the consequences of the valuation being wrong, namely the extent of the negligent over-valuation, but not for all the consequences of the course of action decided upon by the plaintiff who used the information in their own decision-making process.
Lord Hoffman felt that the Court of Appeal in the case had gone too far. He said (at p94):
"Rules which make the wrongdoer liable for all the consequences of his wrongful conduct are exceptional and need to be justified by some special policy. Normally the law limits liability to those consequences which are attributable to that which made the act wrongful. In the case of liability in negligence for providing inaccurate information, this would mean liability for the consequences of the information being inaccurate.
I can illustrate the difference between the ordinary principle and that adopted by the Court of Appeal by an example. A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee.
On the Court of Appeal's principle, the doctor is responsible for the injury suffered by the mountaineer because it is damage which would not have occurred if he had been given correct information about his knee. He would not have gone on the expedition and would have suffered no injury. On what I have suggested is the more usual principle, the doctor is not liable. The injury has not been caused by the doctor's bad advice because it would have occurred even if the advice had been correct."
Lord Hoffman also confirmed a principle which the Ombudsman has taken into account in determining the appropriate measure of loss caused by the provision of wrong information. He said (at p97):
"In the case of breach of a duty of care, the measure of damages is the loss attributable to the inaccuracy of the information which the plaintiff has suffered by reason of having entered into the transaction on the assumption that the information was correct. One therefore compares the loss he has actually suffered with what his position would have been if he had not entered into the transaction and asks what element of this loss is attributable to the inaccuracy of the information."
So, for example, if a member's early retirement pension is X, but the member is quoted a pension of X plus 5, takes early retirement and enters into financial arrangements leading to a combined pension and loss of X plus 10, the maximum negligent misstatement claim will be X plus 5. The Ombudsman has tended to follow this approach in practice (see later in this paper).
It seems clear that in certain circumstances an employer will be liable for the consequences of giving wrong information to scheme members. What about trustees?
Trustees already owe a duty to use reasonable care in relation to beneficiaries and therefore a case of trustees giving wrong information is better analysed in terms of breach of trust rather than in pure negligence terms. The basis for this approach is [1993] AC 295.
The concept of the negligent giving of wrong information in the context of Ombudsman cases is dealt with further in the section on maladministration below.
Contract
The courts have still not provided a satisfactory answer about the extent to which an employee's pension rights are contractual. Contracts of employment usually provide only the briefest of details about pension rights, except sometimes in the case of executives.
Obviously where there is an express contractual term or full contract based on wrong information then a member may be able to claim under it. For a binding contract to exist there must be offer and acceptance, an intention to create legal relations, consideration given by the person to whom the information/promise is made and certainty of terms. Where employees enter into a severance agreement with an employer, containing details of a particular pension deal, a contract will be formed and there will be a claim against the employer. In the absence of some defence for the employer there will be an obligation to meet the particular pension terms promised.
The courts have imposed implied contractual duties on employers. For example, in [1989] IRLR 523 the High Court and Court of Appeal held that because the pension scheme rights were contractual it was an implied term of that contract that the employer would perform its functions under the scheme in good faith.
As far as trustees are concerned it is less obvious that a contractual relationship can arise with existing beneficiaries. The rights of the beneficiaries in relation to scheme benefits flow from the terms of the trust rather than a contract. The Court of Appeal in [1982] Ch 61 took the view that it was not appropriate to consider that there is a contractual relationship between trustees and beneficiaries. However, this was in the context of a private trust. In [1992] OPLR 151, at first instance it was considered that there was a contractual relationship between the beneficiary, trustees and employer.
The position is less complicated where trustees are dealing with third parties ("or strangers to the trust") as is illustrated in [1996] OPLR 361. Sir John Vinelott upheld an Ombudsman determination that a contract had arisen where the trustee of the scheme (also the employer) had told employees that they would be credited with generous pensionable service if they transferred in to a scheme. The Ombudsman analysed the case in terms of offer, acceptance and consideration, thus creating a contract. As Sir John Vinelott said:
"the offer and acceptance of the offer, in my judgment, clearly gave rise to a contract. It is absurd to suppose that the terms of that contract can now be altered. The transferring members have given up the right which they had to retain their benefits under the apparently soundly funded SUITS Scheme. The distinction which it is sought to draw between the position of N and A as employer and as trustee of the interim deed is, in my judgment, artificial and unreal. The offer was made by N and A as trustee so as to bind future trustees."
The same analysis would seem to be applicable to an individual who is already a beneficiary but who wishes to transfer in benefits from a previous employer or policy; the same contractual elements would be present.
The significance of a contract arising as opposed to an action lying in negligence is that an employer or trustees would be bound by the figures contained in the misstatement and this may often produce a better result for the claimant. In a number of recent cases the Ombudsman has held that a contract has arisen, sometimes by regarding inhouse pensions administrators as agents of the trustees and employer and so an exercise of the scheme's augmentation power is deemed to have been made and a contract created.
Equity
Much could be said about the doctrine of estoppel, under which a person who has made a representation about fact or intention to a party who acts to his detriment will not be permitted to act inconsistently with that representation. The Australian courts have held that distinctions should not be drawn between the various types of estoppel ( [1988] 62 ALJR 110). Domestic courts have not gone that far but have sometimes voiced concerns about making fine distinctions between types of estoppel. For example, in [1982] QB 84 Robert Goff J said that "of all doctrines, equitable estoppel is surely one of the most flexible ... it cannot be right to restrict [it] to certain defined categories".
The usual effect of successfully arguing estoppel is that the representor cannot go back on the representation. This is different to the consequences of making a claim based on negligent misrepresentation. David Pollard expressed the view in (January 1995) that:
"The principle of estoppel by convention simply addresses the underlying assumption that was formed by the parties in their dealings, and if benefit statements had become an underlying assumption between the trustees and the members, then the statements would appear to be capable of conferring legal rights. The trustees may therefore be legally obliged to provide benefits as notified in the statements, even if the statements are incorrect in promising greater benefits than provided in the formal legal documentation of the scheme."
However, in practice, the Ombudsman has tended to analyse cases involving wrong information in terms of negligent misstatement rather than estoppel, following the approach taken by Robert Walker J in [1996] OPLR 95. Previously Dr Farrand (the then Ombudsman) was more inclined to use estoppel.
Maladministration
Ombudsmen have tended to classify grievances as maladministration rather than disputes of fact or law. The legislation clearly envisages that maladministration may be something different to a dispute, but in many cases there is an overlap. There is not always an overlap, as pointed out by Blackburne J in [1997] OPLR 31 when he said:
"... I dissent from the Pensions Ombudsman's view, expressed in three of his determinations, that a 'breach of trust, even if excusable, must technically amount to maladministration by the trustee'. In my view something more must be proved."
However, the two types of grievance will often overlap as acknowledged by Walker J in:
"Most complaints of maladministration will involve disputed questions of fact and law (including, it may be, the proper ambit, in a pensions context, of 'maladministration')."
Before the case the Ombudsman tended to try to put complainants in the position in which they would have been if incorrect information given to them had been correct. So, for example, if a member was over-quoted an early retirement pension and retired as a result, the trustees may have been directed to continue paying an inflated pension. However, in Walker J held:
"Compensation for negligent misrepresentation (to which the Pensions Ombudsman equated the maladministration) should put the plaintiff in the same position as if the informant had performed his duty and provided correct information - not put him in the position in which he would have been if the incorrect information had been correct."
Therefore an alternative measure of quantifying loss applies; what loss has flowed from the giving of the incorrect information? In , Walker J observed that there was no suggestion in the facts found by the Ombudsman that one of the complainants, Mr Haywood, suffered any quantifiable financial loss as a result of being misinformed by his employer and there was no suggestion that Mr Haywood could have kept his job until normal retirement. Therefore no financial loss resulting from maladministration was established. Walker J concluded that:
"In the absence of such loss being established, I cannot accept that the remedying of injustice can require, or even be consistent with, the payment to a local authority pensioner of a pension larger than [that] to which he (or any other pensioner in his position) is lawfully entitled, simply because of an error (however culpable) on the part of the local authority. The Pensions Ombudsman has directed such payments either on the strength of a contract or estoppel between Westminster and Mr Haywood, or as compensation for misrepresentation. But for the reasons already stated, neither contract, nor estoppel, nor compromise can be a lawful foundation for unlawful payments; nor can the analogy with negligent misrepresentation justify compensation where monetary loss is not established."
The High Court in [1996] OPLR 231 took a similar line, where the Ombudsman's determination was set aside on the basis that the trustees could not be directed to provide the complainant with more than his fair share of the scheme assets.
The case has led the Ombudsman to look instead for financial loss flowing from incorrect information about pension scheme benefits provided by employers, trustees and administrators. He has also sought to establish contractual liability on the part of trustees and/or employers.
Unfair Dismissal
The provision of wrong information can also give rise to a successful unfair dismissal claim. In [1989] PLR 43, an employee successfully argued that he was constructively and unfairly dismissed under employment legislation due to false information given to him about his pension entitlement. The employee thought that his early retirement pension would be a third higher than it turned out to be. After retiring he discovered the true pension position and sought reinstatement and/or compensation for pension under the loss. The current cap on unfair dismissal claims is GBP 51,700.
Practice
The practice of the Ombudsman has tended to follow the approach suggested by Walker J in and the analysis of cases by the Ombudsman in terms of causation and the extent of any loss caused by reliance on wrong information has tended to follow the tortious principles discussed above. There are three main bases of claim where the trustees and employer are not bound by the figures provided to a member but are possibly bound in relation to detrimental reliance by the member. The cases tend to fall into the following categories:
(a) career decisions
(b) spending
(c) financial arrangements.
These cases usually involve an investigation by the Ombudsman into difficult evidential questions. Did the member rely on the incorrect information to their financial detriment or would they have taken exactly the same financially related steps even if correct information had been given to them? Complainants are faced with difficult evidential hurdles as they need to show that they took action, such as incurring unnecessary expenditure, as a direct result of being given incorrect information about their pension rights.
Similarly, it can be difficult for a respondent to muster arguments against a complainant who claims that they spent money or took other financial action that they would not otherwise have taken. The respondent may be left to make some commonsense observations on the evidence put forward by the complainant but ultimately it will be up to the Ombudsman and his investigator to judge. As it is a civil rather than criminal case the test is one of "balance of probabilities" rather than "beyond reasonable doubt." So the question is whether it is more likely than not that the member relied on the incorrect information to his detriment.
Where reliance has not been established
In case E00414, a provisional estimate of early retirement benefits was provided to a member. She decided to retire and was then informed that the benefits actually payable were less than those quoted to her.
The qualified estimate was not contractually binding but the employer's actions resulted in the member deciding to retire on the basis of the estimate. The Ombudsman concluded that the overall benefits of the early retirement option were generous and particularly advantageous to her as she would get five years extra service funded by the employer. The differential between the estimated and eventual benefits was not so great as to erode the attractiveness of the option to the extent that she would have declined to volunteer. There was a lack of evidence of quantifiable pecuniary loss resulting from the mis- information. The only compensation directed was a payment of GBP 200 by the employer for distress and disappointment.
In case E00447 an estimate of early retirement benefits was provided based on an incorrect annual remuneration figure. Arrears of pay should not have been included in the figure. Therefore a pension of GBP 9,314.98 was payable instead of GBP 10,500. The employer offered the member the chance to withdraw his early retirement application with reinstatement in his old job. This was declined because he no longer wanted to continue working in that job and had entered into a "personal family commitment" involving an overdraft to be repaid on the receipt of his retirement lump sum.
The Ombudsman concluded that there had clearly been maladministration but injustice had to be established on the basis of detrimental reliance on the incorrect figures. The member could not argue that his decision to retire was based on the incorrect figures because he was given the correct figures before retirement and was given an opportunity to revoke his decision. The Ombudsman considered that it was necessary and reasonable to expect complainants to mitigate any likely injustice. The family commitment related to drainage work in his garden and helping out his son. Expenditure of that kind could not be treated as detrimental reliance. The only compensation awarded was GBP 750 payable by the employer and by the manager in respect of distress and disappointment. This case also illustrates the duty perceived by the Ombudsman for members to mitigate their loss. This principle has been applied in a number of similar cases.
In case E00470 a member was given a handwritten estimate of pension benefits which turned out to be almost 40 per cent too high. He argued that he based his decision to retire on the estimate. The Ombudsman concluded that the complainant was not induced to retire by the figures because he was already certified as permanently incapacitated on medical grounds and no alternative job was available. Therefore no detrimental reliance had occurred. The manager was ordered to pay him GBP 500 for disappointed expectations.
In case E00678 the maturity value of a policy was misquoted. The employer advised the complainant of this by a letter on 15 March 1995, giving details of the correct pension entitlement and enclosing a cheque for the correct lump sum payment. The complainant said that she did not receive the letter until 23 March and on 21 March she had enrolled for a degree course, paying a non- returnable deposit, and made a loan of GBP 1,000 on 4 April.
The Ombudsman concluded that maladministration had occurred but the complainant could have withdrawn from the degree course and so would not have suffered consequential loss. The loan could not be regarded as consequential loss because it was made after she was aware of the reduced lump sum.
In case E00674 the complainant was found not to have suffered financial loss following an incorrect quotation. He would have probably chosen to take early retirement anyway because he wanted to spend more time with his wife who was in poor health and his mother who was 90 years old. He claimed that he had bought a car and caravan in reliance on the quotation, but the Ombudsman concluded that he had possession and enjoyment of them and so did not suffer financial loss.
Where reliance has been established
The more interesting cases, for complainants and respondents alike, are where the Ombudsman has found that detrimental financial reliance occurred.
In case E00343 a member accepted voluntary redundancy after signing a form indicating the pension terms available. He claimed that he assumed the figures did not include AVC entitlement. He was then told that because of a mistake by the company his cash sum entitlement would be lower than in the form, as would his residual pension. He was sent the cash sum and a letter purporting to confirm the amount of residual pension. This was less than he had expected and he then realised the sums quoted in the form has been intended to include the AVC benefit. He thereupon told the company that he would not have accepted voluntary redundancy if he had realised his pension would be so low and asked for his job back. This was refused because the department he had worked in had been re-organised. Eventually the figures were confirmed and the employer raised the idea of re- employing him but he had made other arrangements. He argued that he would not have left employment if he had realised his true entitlement.
The Ombudsman concluded that the company should pay him what it would have paid in contributions to his pension had he continued in employment until his normal retirement age, with a 15 per cent reduction as the payment would be made immediately rather than spread over a period of time. As far as any other financial loss was concerned, the Ombudsman noted that the complainant had received redundancy money and his pension and was available for other employment. He therefore did not award compensation for lost earnings.
The Ombudsman took an opposite view in case E00493 where the complainant argued that he had taken early retirement a year earlier than he would have done were it not for an incorrect quotation. The Ombudsman concluded that the complainant would have worked a further year to bring his benefits up to the desired level. He would have earned over GBP 6,000 and higher pension benefits due to ill-health. However, the Ombudsman pointed out that the law did not require a precise calculation of the loss since it appeared to be higher than the difference in the valuation of his misquoted pension rights and what he actually received. Where inaccurate information was provided, damages should not put the victim in a better position than he would have been in had the information been correct and reference was made to [1996] 3 WLR 87. The trustees were ordered to provide, by purchase of an annuity or otherwise, payment of the amount needed to bring the overall benefits into line with the original quotation. This was to be backdated together with interest on the unpaid benefits.
This case brings out the principle that although loss flowing from incorrect information can be compensated, this must not have the effect of putting the complainant in a better position than if the inaccurate information had been correct. Another example of this principle being applied was in case E00714 in which the complainant's loss was quantified as a year's salary "less the cost of working, appropriate deductions and any excessive amount paid to the complainant's ex-wife that would not have been had the benefits estimate been broadly correct." To pay this amount would have compensated the complainant more generously than honouring the original incorrect quotation. A similar remedy to the other case was granted.
In case E00474 an incorrect quotation was made and the complainant made financial commitments in reliance on, it in the form of money lent to her by her family, with repayment to be made from the expected pension. The Ombudsman held that the loss was the debt incurred and that the manager should pay her GBP 5,000 with interest. The logic of this award seems questionable as the complainant must have derived some benefit from a loan of GBP 5,000.
Contractual analysis
As was discussed above, the Ombudsman has applied a contractual analysis to a claim in some cases, for example in the determination which was appealed in . This concerned an over- generous statement of pensionable service which would be provided on a transfer in to a scheme. The Ombudsman held, and the High Court confirmed, that a contract had arisen between the trustees of the scheme and the transferring member and the scheme was therefore bound to provide the generous pensionable service credit. The Ombudsman will therefore look for any contracts that have been created as this will often be to the advantage of the complainant because the scheme or employer will be bound to provide the benefits based on the incorrect information rather than simply being liable for loss flowing from the misquotation (which must never exceed the misquotation following ). There seems to be an increasing likelihood that the Ombudsman will look for contractual liability. For a detailed analysis on this, see the article entitled 'Misstatement - potential contractual liability'.
