Don’t moth about when answering pre-contract enquires

You may have seen in the news (assuming you’re reading this in or after February 2025) that there has  been a bit of hullabaloo in the media recently about moths.

The reason? Judgment was handed down by Mr Justice Fancourt on 10 February 2025 in the case of Patarkatsishvili v Woodward-Fisher [2025], with moths, thousands of the little blighters, being at the heart of the case.

The Judgment stretches to 302 paragraphs over 50 pages. As judgments go, I found it to be one of the more interesting and easy-to-read ones, albeit it did leave me questioning throughout how on earth the dispute got to trial, before concluding that the answer to that came down to the eye-watering sums of money involved.  I would be interested to know what offers of settlement were made throughout the dispute, but alas I suspect that we may never find out.

I digress.  I have summarised below the key background facts of the dispute, as contained in the Judgment

• The Seller, Mr Woodward-Fisher, bought Horbury Villa, Ladbroke Road, London (“the Property”) in 2011 for £10.4 million.
• Between 2012 and 2013, the Property was substantially extended and renovated (“the Works”) by Mr Woodward-Fisher and his wife, with approximately £10 million spent on the Works.
• As part of the Works, insulation with a high proportion of natural wool was installed to the Property.
• In early 2018, Mrs Woodward-Fisher began to notice an issue with house moths. The issue became sufficiently irritating that Mr & Mrs Woodward Fisher contracted a couple of pest controllers so assist in resolving the issue.
• Their contracted pest controller proceeded to carry out spray treatments throughout the Property. The treatments failed to put a halt to the problem.
• The pest controller produced an initial report in May 2018. They recommended further spray treatments, but also they expressed the view that the cause of the moth issue was an infestation arising from the insulation in the Property, and that the problem would not go away unless all the insulation was removed and replaced with synthetic insulation (this, as it happens, was the view expressed at the outset by the other pest controller that Mr & Mrs Woodward Fisher had approached, but who they decided not to proceed with).
• A second report on the moth issue was produced at the end of June 2018, confirming the earlier report’s conclusion that the insulation needed to be removed and replaced. Mr & Mrs Woodward Fisher did not heed the advice given, choosing instead to have a further spray treatment done to the Property, rather than remove the insulation.
• In February 2019, a sale of the Property for £32.5 million to Iya Patarkatsishvili and Yevhen Hunyak (“the Buyers”) was agreed.
• Contracts were exchanged on 7 March 2019 and completion took place on 2 May 2019.
• The Buyers had visited the Property prior to completion, but at no time had they witnessed any moths within the Property. Soon after completion, however, the moths began to make their presence known.
• In September 2020, after some months of continuing problems with moths, and as a result of making enquiries with pest control companies, the Buyers discovered that one of the pest controllers that had been approached was the same pest controller that had carried out the spraying works at the Property, and issued reports to Mr & Mrs Woodward-Fisher, regarding the moth problems they had experienced.
• After the exchange of pre-action correspondence, which included a formal letter of claim being sent in May 2021 to Mr Woodward-Fisher (whilst his wife lived at the Property with him and seems to have played an active role in the works done to the Property, the Property remained in his sole name at all times, hence the claim being issued just against Mr Woodward-Fisher) alleging fraudulent misrepresentation, a formal claim was issued by the Buyers in December 2021.

The case centres on the answers provided by Mr Woodward-Fisher in relation to 3 pre-contract enquiries. The enquiries, and the replies that were given, were as follows:-

1. Has the property ever been affected by woodworm, dry rot, or other timber infestation or decay; defects in drainage, water pipes, gas pipes or electrical wiring; damp; subsidence, landslip or heave; any structural building or drainage defect; vermin infestation [my emphasis],

 Reply: “The Seller is not aware of any such matters affecting the property since the renovation and extension works were undertaken and completed but has not had the property surveyed for such matters so no warranty can be given in this regard and the buyer must rely on the results of its own surveys, inspection and professional advice”.  

2. Please supply a copy of any report concerning any matter referred to in 2.1 above or otherwise concerning the fabric of the property.

 Reply: “ Save as may have been disclosed in the documentation provided, there are none” 

3. Is the seller aware of any defects in the property which are not apparent on inspection (due to the presence of furniture, carpets, cupboards etc).

 Reply:  “The seller is not aware of any such defects but has not had the property surveyed for any so no warranty can be given in this regard and the buyer must rely on the results of its own survey , inspection and professional advice”.

In what will probably come as no surprise to anyone who read the background summary above, Mr Justice Fancourt found all 3 replies provided by Mr Woodward-Fisher were misrepresentations.

One of Mr Woodward-Fisher’s arguments was that he asserted that he did not realise that moths were “vermin”, relying on a very narrow dictionary definition of the term. That received short shrift from Mr Justice Fancourt, as did Mr Woodward-Fisher’s contention that the reports provided by the pest controllers were not in fact reports.

Mr Justice Fancourt found that the Buyers knew of, and relied on the replies, and that Mr Woodward-Fisher knew, or suspected that the replies he had provided were untrue.

Interestingly, as to Mr Woodward-Fisher’s motive for failing to honestly disclose the infestation and the reports, Mr Justice Fancourt did not find that Mr Woodward-Fisher was consciously trying to deceive the Buyers, rather

“He simply wanted to sell the house and move on…disclosure of the infestation would likely have caused the sale to go off, and he would have been left needing to move out of the house and do expensive works….[he] was hoping that the problem might have gone away and he was willing to take the risk that he was wring about that”.

Having found that Mr Woodward-Fisher was reckless about the truth of his reply to 2.1, and knowingly made false representations regarding replies 2.2 and 2.3, Mr Justice Fancourt rescinded the Property purchase contract, with Mr Woodward-Fisher being ordered to pay the Buyers

• the £32.5 million purchase price, minus roughly £6 million (calculated at the rate of £21,000 per week from the date of completion of the purchase to the date of the Order of the Court giving effect to the judgment) to recognise the Buyers’ use of the Property since the date of purchase;
• £4 million in damages, which included £3.7 million paid by the Buyers in stamp duty, removal costs and legal costs associated with the purchase, and £15,000 to compensate them for moth damaged clothes.

We do not know what order has been, or will be made, regarding costs.

Mr Justice Fancourt concluded his Judgment by addressing the assertion made by Mr Woodward-Fisher’s KC that a finding of misrepresentation in this case would result in all sellers having to disclose any moth issues - no matter how small - to buyers. That was, said, Mr Justice Fancourt,  “simply wrong”.  I have set out below the penultimate 1 ½  paragraphs of the judgment, as it not only addresses the aforementioned assertion, but succinctly summarises a Seller’s obligations when faced with pre-contract enquires.

“…There is no duty of disclosure on a seller of real property (caveat emptor), except to the extent that a failure to disclose would make information otherwise given to a buyer misleading or incomplete.

What a seller does have to do is provide honest answers to pre-contract enquiries, if they answer them at all. So, if a question is asked whether within a specified period the sellers have seen a clothes moth in the property, or suffered moth damage to clothing, and the truthful answer is “yes”, the seller must either decline to answer, if they consider that the enquiry is inappropriate, or say “yes”, with or without further particulars. If the question is whether the seller is aware of any infestation of vermin, and the seller has experienced no more than a few moths and occasional damage to clothing (the “normal” London experience, as Mr Seitler called it), the honest answer will be “no”. However, if the seller knows that they have, or may have, an infestation of moths, the only honest answer would be “yes” or “no, but the property was identified on [date] as having a clothes moth infestation”. [para 318-319]

So there we have it.  When answering pre-contract enquiries, it’s not rocket science; either don’t answer at all, or say it how it is. Don’t try and be clever with your answers.

Being found to have made misrepresentations may not end up costing you £30 mllion+, but it could well make a hefty dent in your bank balance.

If you have any queries arising from this article, or wish to discuss any other contentious property related matter, contact Chris Drinkall, Rollits’ Head of Dispute Resolution, on 01482 337367