Misleading conduct in commercial cases

Prohibitions on misleading or deceptive conduct in trade or commerce are primarily concerned with consumer protection, the classical function of the prohibition being not to make individual consumers whole, but to protect the public generally. This article suggests that while claims for misleading conduct in business disputes can and should sometimes succeed, many fail because of the greater difficulties in proving the requisite elements in commercial contexts. Rather than proposing unrealistic statutory reforms, this article identifies typical features of misleading conduct claims in business disputes, in order to provide some guidance as to when such claims have realistic prospects of success. The desirable outcome would be fewer - but better pleaded - misleading conduct claims by and against commercially sophisticated parties.