Misrepresentation: Sight of order book foils
Signed OB foils are not usually available as evidence of misrepresentation unless there have been fraud investigations. The following may be considered
- if there is any circumstantial evidence of the misrepresentation on the OB foils, or
- if there is a misrepresentation on any other form or letter, or
- if there has been a failure to disclose.
If the material fact has been disclosed or no disclosure was to be expected, the claimant’s representation that there is entitlement to the sum of benefit shown on each of the orders is not a misrepresentation of a material fact, as the representation of entitlement is one of law not of fact.
There may be a misrepresentation of a material fact if the claimant signs the declaration and does not believe that there is an award in his favour. For example if the claimant reported a change of circumstance, their claim was reviewed as a result of that change to nil entitlement and they are asked to return their order book, but they continue cashing orders.