Exclusion clauses

Uncertain but not unenforceable

Emily Davies

In Royal Devon and Exeter NHS Foundation Trust v ATOS IT Services, the court found that (i) an ambiguous limitation of liability clause was enforceable and (ii) damages for wasted expenditure were distinguishable from damages for loss of profits. The Trust engaged ATOS to provide information management services. Unhappy with the performance of the system, Read More

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Is it worth negotiating? Clarification of “written standard terms of business” under UCTA section 3

Po-Siann Goh

In African Export-Import Bank v Shebah Exploration & Production Company, the Court of Appeal confirmed the test for when negotiation and amendment of “written standard terms of business” will preclude application of the reasonableness requirement in section 3 of the Unfair Contract Terms Act 1977 (UCTA). Section 3 of UCTA subjects certain exclusion clauses to Read More

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Careful what you wish for. Contractually agreed remedies, if sufficiently clear, can exclude common law remedies

Julius Handler

In Scottish Power v BP Exploration, the Court of Appeal considered whether contractually agreed remedies contained in long-term North Sea gas sales agreements should be construed as excluding common law remedies. Scottish Power sought damages from the Sellers, which breached their obligation to deliver gas. At first instance, Leggatt J agreed with the Sellers that Read More

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Limiting your liability – some guidance from the Supreme Court

Richard Farnhill

Last week’s Supreme Court decision in Impact Funding Solutions v AIG Europe Insurance drew together some important threads on when and how a party can limit or exclude liability which are of general application. Principally: The contra proferentem doctrine is there to remove doubt, not create it. If the exclusion clause is clear, the doctrine has Read More

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