Exclusion clauses
Exemption and non-reliance clauses

14 December 2020 - Jason Rix
Richard Hooley spoke to us this lunchtime about exemption clauses. Interpretation He began by quoting from Andrew Burrows’ A Restatement of the English Law of Contract (which has recently been updated) and its excellent summary of contractual interpretation. Paraphrased it says: Ask what the clause, “viewed in the light of the whole contract, would mean › Read More
Money down the drain? How to avoid damages being sunk by remoteness.

15 July 2020 - Richard Farnhill
The fact that your contract has been breached and the breach has caused you losses is not enough for you to make a recovery. Remoteness is the often overlooked third leg of the damages stool. In AG of the Virgin Islands v Central Water Associates the Privy Council gave more guidance on how the rules › Read More
May the force majeure event be with you?

13 May 2020 - Joseph Worndl
In 2 Entertain v Sony, the High Court held that liability for losses stemming from a warehouse fire during the 2011 London Riots could not be excluded by a force majeure clause. Sony provided warehousing and distribution services to 2 Entertain, a BBC subsidiary selling DVDs. In 2011, during the London riots, a gang set › Read More
Quincecare: can you exclude the implied duty?

23 October 2019 - Jason Rix
In a recent decision, upholding a refusal to grant summary judgment, the Court of Appeal held that an entire agreement clause and an exemption clause were ineffective to prevent a Quincecare duty arising or to exclude liability under that duty. In simplified form, a Quincecare duty means that a bank must not make a payment › Read More
Force majeure, causation and damages – a “Classic” conundrum

05 July 2019 - Jason Rix
In Classic Maritime v Limbungan, the Court of Appeal overturned the High Court and awarded substantial damages for breach even though performance ultimately would not have been possible. Limbungan failed to deliver iron ore to Classic Maritime when a flood shut down the mine producing the ore. The High Court, had held that to rely on › Read More
A question of construction: liability caps and building contracts

16 October 2018 - Jason Rix
In Arcadis v AMEC, the Court of Appeal held that a liability cap had been incorporated into a letter of instruction. AMEC, a specialist concrete contractor, employed Arcadis, an engineering outfit, to help design two construction projects: the Wellcome Building and Castlepoint car park. A detailed Protocol Agreement was exchanged but never finalised. Work was › Read More
All liability exclusion neither onerous nor unreasonable

26 June 2018 - Jason Rix
In Goodlife v Hall Protection, the Court of Appeal held an all liability exclusion clause was neither onerous nor unreasonable. Goodlife bought a fire suppression system from Hall Fire. Despite the purchase, Goodlife suffered a devastating fire. Hall Fire’s standard conditions excluded all liability whatsoever for failure of the safety equipment. Goodlife argued that it › Read More
Have no reliance on non-reliance? Clauses excluding misrepresentation must be reasonable.

22 June 2018 - Jon Turnbull
When commercial parties contract, they usually want to restrict their potential liabilities to the four corners of the document. The law sometimes has other ideas. Misrepresentation is a classic example. Liability for misrepresentation can be excluded by commonly found “non-reliance” clauses (often found within an entire agreement clause). These clauses set up a contractual estoppel; › Read More
An unfair relationship? Bank’s basis clauses upheld

21 May 2018 - Sophie Walker
In Carney v Rothschild, the High Court considered the efficacy of “basis clauses” in the context of a financial mis-selling claim in which it was alleged that an unfair relationship under the Consumer Credit Act 1974 had arisen. The claimants, four British expats living in Spain, had borrowed funds from the bank, secured against their › Read More
Your exclusion clause won’t benefit from hindsight

27 February 2018 - Jason Rix
In Nesbit Law v Acasta Insurance the Court of Appeal held that an insurer could not rely on an exclusion clause in order to avoid paying out under its policy. The claimant personal injury solicitors were members of a funding scheme run by the defendant insurer and a bank. On joining the scheme the solicitors’ › Read More