One of the key ingredients for a successful claim in fraudulent misrepresentation is the claimant proving that they relied on false representations in entering into a contract. In a recent interlocutory decision in the “NOx” litigation arising from the Volkswagen emissions scandal (Anthony Crossley and others v Volkswagen Aktiengesellschaft and others) the High Court grappled with the following question in this regard: whether the claimant must plead and prove that they were “actively and consciously aware” of the representation in question, or as the court described it, the “awareness condition”.
