Limitation and exclusion of liability

The general principle of freedom of contract must be balanced against public policy concerns that a party who freely undertakes a binding contractual obligation should not be equally free to absolve itself from its duty to perform that obligation. To help strike this balance, English law has developed a mix of statutory rules and case law which must be taken account of when negotiating or reviewing these clauses.

We suggest that any analysis of a particular exclusion or limitation clause should take a three-step approach:

1. Is the clause incorporated into the contract?
2. Is the liability in question covered by the clause? 
3. Are there any cases or legislation regulating its effect?

Incorporating the clause

An exclusion or limitation clause is only enforceable if it has been incorporated into the relevant contract. A party's standard terms are incorporated if they have been reasonably and fairly brought to the other party's attention. Even assuming that the "battle of the forms" has been won, if a party is trading on its standard terms an unusual or unclear exclusion clause may fail if it is not given a sufficient degree of prominence to put the other party on notice. The more unusual or onerous the clause, the more prominence it should be given.

Covering the liability in question

The words used must clearly and unequivocally cover what they are intended to cover.¹ The question for the court, in all cases, is whether the clause, on its true construction, extends to cover the obligation or liability that it seeks to exclude or restrict. 

So, for example, if a clause aims to exclude liability for negligence,  it is advisable to include an express reference to "negligence"; general words such as "any loss" or a reference to loss "howsoever caused" may not be sufficient. Although recent cases indicate that an express reference to negligence will not always be required,² clarity on the issue will assist in avoiding litigation on the scope of the exclusion clause.

Excessively wide or ambiguous wording

Overall, the exclusion should not be too broad in scope. A narrower, more realistic clause is more likely to be upheld by a court. Also, if the wording of a clause is ambiguous, and the standard approach to construction does not give a clear answer, it may be construed "contra proferentem". This means that the court will interpret the clause strictly and construe any ambiguity against the party seeking to rely on it. However, the "contra proferentem" rules has a very limited role to play in respect of commercial contracts that have been negotiated between parties of equal bargaining power (Persimmon Homes Ltd v Ove Arup & Partners Ltd)³.

Nonetheless, even where a contract is unaffected by the legislation described below, the common law approach to construction is not always a literalist one and limitation/exclusion clauses will not be given a literal interpretation which would otherwise produce a result at odds with the main object of the contract (Mitsubishi Corporation v Eastwind Transport Limited and Others)⁴.

Generally, the courts look for clear wording which unambiguously sets out the intention of the parties regarding the allocation of risk between them. They will also look to the other contractual terms agreed to ascertain the parties' intentions regarding allocation of risks and liabilities. In a commercial situation it is recognised that the parties themselves are the best judges of this and the courts will intervene only when strictly necessary. However, balanced against this is a presumption that contracting parties do not readily give up their legal rights without careful thought, and express wording is needed to show that this is in fact what they intended.⁵ 

Statutory controls

The Unfair Contract Terms Act 1977 (UCTA)

UCTA applies to commercial situations and is the most significant statutory control in this area.  UCTA regulates the exclusion and restriction of liability for breach of express and implied contractual obligations and the common law duty of care (i.e. tort). UCTA regulates terms according to the area of liability that they attempt to exclude or restrict. These areas are considered below. Certain types of contracts are outside UCTA's scope – see page 5 for more details.

Consumer Rights Act 2015 (CRA)

From 1 October 2015, the CRA covers all aspects of unfair terms in business-to-consumer contracts which had previously been covered by UCTA and the Unfair Terms in Consumer Contracts Regulations 1999.  It deals with implied terms in relation to the quality of goods and services, including digital content, and regulates attempts on the part of a trader to exclude its liability for breach.  The CRA also introduced a "fairness" test.  Any term which causes "a significant imbalance" in the parties' respective positions, to the detriment of the consumer and in a way which is contrary to the requirement of good faith, will be regarded as "unfair". 

A term that is "unfair" is not binding on the consumer, and the consumer can treat it as struck out of the contract. The remainder of the contract will stand if it is capable of doing so according to the usual principles of severability. 

Applying the Unfair Contract Terms Act 1977

Negligence

It is not possible to exclude or restrict liability for death or personal injury resulting from negligence. In the case of other loss or damage resulting from negligence (e.g. financial loss or property damage), liability can be restricted, but only insofar as the term or notice satisfies the UCTA reasonableness test which is explained later in this guide. This rule applies in all circumstances, regardless of whether the term is in a contract or a non-contractual notice or whether the parties are dealing on standard terms or a bespoke contract. The rule applies regardless of whether the person to whom the exclusion is directed is a business or a consumer. 

Misrepresentation

Any term of a contract which attempts to exclude or restrict liability for pre-contractual misrepresentations or which tries to limit the remedies available for misrepresentation will be of no effect save to the extent that it satisfies the requirement of reasonableness in UCTA.

This is frequently relevant in the context of "entire agreement" clauses which attempt to exclude all representations and other information disclosed during pre-contractual negotiations. Such clauses are most likely to be regarded as reasonable in situations where the pre-contractual negotiations have been complex, on the basis that both parties benefit from the certainty of setting out all relevant rights and liabilities in one document without the worry of a possible collateral warranty claim.

Beware of including an entire agreement clause which attempts to exclude liability for all misrepresentations, whether innocent, negligent, or fraudulent. Any purported exclusion of fraudulent misrepresentation will be unreasonable (Thomas Witter Ltd v TBP Industries Limited)⁶ and the whole clause may therefore be of no effect. An entire agreement clause should explicitly carve out fraud and fraudulent concealment from its provisions.

Breach or non-performance of contract

Section 3 of UCTA prevents the use of an exclusion clause which:

(a) excludes liability for breach of contract; or

(b) claims to permit a contractual performance substantially different from what is expected; or

(c) in respect of the whole or any part of a contractual obligation, claims to allow no performance at all (e.g. if a condition precedent is not satisfied),

unless (in each case) the clause satisfies the reasonableness test. 

This rule applies where one of the contracting parties is a business contracting on the other's written standard terms. "Written standard terms" is interpreted more widely than may be expected and could catch negotiated contracts which have standard exclusion clauses inserted into them or if the counterparty refuses to negotiate the clause (see St Albans City and District Council v International Computers Ltd)⁷.

Commercial contracts commonly contain force majeure clauses absolving the parties from liability if some unforeseeable event occurs that renders performance impossible. Such clauses can, in practice, have the same effect as exclusion clauses and may be subject to the reasonableness test under section 3 of UCTA. Although force majeure clauses are generally regarded as reasonable, they may raise problems where they are drafted unusually widely to cover matters such as increased costs or events which are arguably within the control of the parties.

Breach of terms implied by law

Title

In respect of the supply of goods, services and digital content prior to 30 September 2015, the Sale of Goods Act 1979 and the Supply of Goods (Implied Terms) Act 1973 imply warranties as to title and quiet possession into contracts for the sale of goods and hire-purchase agreements which effectively confirm the seller's right to sell.  Now, under section 6(1) of UCTA, liability for breach of these implied warranties cannot be excluded or restricted at all. Likewise, similar warranties which are implied by the Supply of Goods and Services Act 1982 into other types of contract cannot be excluded. A seller which knows it is unable to pass good title should therefore agree with the buyer to transfer only such title as it has, rather than purporting to transfer good title then trying to exclude liability for the breach. 

Quality of goods

The Sale of Goods Act 1979 (as amended by the Sale and Supply of Goods Act 1994) implies warranties as to the quality of goods into contracts for the sale of goods (i.e. that the goods, where sold by description/sample, must conform to that description/sample, must be of satisfactory quality and must be fit for their purpose). Similar terms are implied into hire-purchase contracts by the Supply of Goods (Implied Terms) Act 1973. 

Under section 6(2) of UCTA, liability for breach of these implied terms can be excluded or restricted, but only in so far as the clause in question satisfies the requirement of reasonableness. It is likely to be reasonable if the buyer is given the chance to inspect the goods or to provide input into their design and/or manufacture. Further, the Court of Appeal has indicated that the word "condition" is required to effectively exclude these implied terms, and the words "warranties", "guarantees" or "representations" are not effective.⁸ 

The CRA deals with these topics in consumer contracts.  

The "requirement of reasonableness" under UCTA

The requirement of reasonableness is fundamental to the operation of UCTA. A term will be reasonable if it is "a fair and reasonable one to be included having regard to circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made"⁹. 

The "reasonableness" guidelines

The five guidelines to interpreting "reasonableness" laid down in Schedule 2 to UCTA are, in summary:

• the relative strengths of the parties' bargaining positions;
• whether the customer received any inducement to accept the term;
• whether the customer knew or should have known that the term was included;
• in the case of a term excluding liability if a condition is not complied with, the likelihood of compliance with that condition at the time the contract was made; and
• whether the goods were made or adapted to the special order of the customer.

However, these guidelines are not exhaustive.

Although it is stated that the guidelines apply specifically to sale and supply of goods situations, they are usually regarded by the courts as of more general application (Stewart Gill Limited v Horatio Meyer & Company Limited)¹⁰.

In business contracts, especially where the parties are of comparable bargaining power and can insure against the risks contemplated by the clause, courts are reluctant to intervene and prefer to leave the parties free to apportion the risks as they see fit (Watford Electronics Ltd v Sanderson CFL Limited)¹¹. Nevertheless a clause which attempts to leave a customer of whatever type without a realistic remedy for a serious breach of contract runs the risk of unreasonableness (Regus (UK) Ltd v Epcot Solutions Ltd)¹².  

Additional principles of "reasonableness" exist at common law. What is relevant to assessing reasonableness is a matter of fact in each case. However, there are some general rules. Reasonableness is generally satisfied where there is a fully negotiated contract between parties of equal bargaining power (Raiffeisen Zentralbank Osterreich AG v Royal Bank of Scotland)¹³.  A clause limiting the amount of money recoverable is more likely to be reasonable (Ailsa Craig Fishing Co. Ltd v Malvern Fishing Co. Ltd)¹⁴ than one excluding liability altogether. Similarly, the use of small print or unnecessarily convoluted drafting is likely to be unreasonable (Stag Line Ltd v Tyne Ship Repair Group)¹⁵. Industry practice and the availability of insurance have also been persuasive (Cover Version Ltd v DHL Logistics (UK) Ltd¹⁶ and Goodlife Foods Ltd v Hall Fire Protection Ltd)¹⁷.

Clauses falling foul of UCTA 

If an exclusion or limitation clause falls foul of UCTA, whether because it purports to exclude a type of liability which cannot be excluded, or it is not "reasonable", it will be of no effect. The court must look at the clause as a whole.¹⁸  It will not rewrite the clause to substitute an acceptable alternative. In other words, liability for the event in question will be completely uncapped, subject only to the usual rules regarding remoteness and causation. On the other hand, no sanctions such as fines apply to anyone using an invalid clause.

The problem of a clause being partly valid and partly invalid under UCTA is a difficult one with no clear-cut answer. Although this is a complex area, the practical implications are much simpler. The risk of an entire exclusion or limitation of liability clause being unenforceable can be minimised by drafting it, using sub-clauses, as a series of separate "terms" easily distinguishable from one another. Avoid the use of a single, broad clause which addresses all issues together.¹⁹    

Contracts outside UCTA control

Broadly, UCTA does not cover insurance contracts; contracts relating to the creation, transfer or termination of intellectual property rights; contracts relating to the formation, dissolution or constitution of a company or to the rights or obligations of its members; contracts relating to the creation or transfer of securities or rights in securities; contracts relating to the creation, transfer or termination of an interest in land; certain marine/shipping contracts; or employment contracts. There are, however, certain savings for consumers under marine/shipping contracts, and for employees under employment contracts (Schedule 1).

UCTA does not extend to "international supply contracts" either. Broadly, these are contracts under which possession or ownership of goods passes and which envisage that goods will be carried between different states or those with offer and acceptance in different states. ²⁰  Contracts for the international supply of services remain within the control of UCTA, assuming English law is the applicable law in the contract. As a result, suppliers can be a lot bolder in excluding their liability under contracts for the cross-border supply of goods in comparison with providers of services (section 26).

In addition, the key provisions of UCTA will not apply where English (or other UK) law only applies because that is the governing law chosen by the contracting parties. So, if the contract includes an English governing law provision, but would otherwise have been governed by a non UK law, sections 2 to 7 and 16 to 21 will not apply (section 27). 

Drafting points

The first step is to consider whether the impact of UCTA can be minimised or even avoided altogether. Because standard terms or clauses will attract section 3 of UCTA and the reasonableness test for any restriction of contractual liability, consider whether a bespoke, individually negotiated contract may be a better way to address this. In all cases, however, clear and simple drafting is important.

General considerations

• Use unambiguous wording.
• Identify expressly the types of liability to be excluded (e.g. "negligence").
• Exclusions by implication will not be effective and so should be made explicit.
• Take care that general words such as "other" and "including" do not put a misleading gloss on a clause.
• Make sure that a meaningful remedy is still available on breach.
• Use separate, precise clauses which break down the issues for easy analysis and to aid severability.
• A severance clause should be included in the boilerplate clauses of the contract.
• Consider inserting an express obligation for the parties to obtain insurance cover.
• If appropriate, keep records of the fact the clause has been negotiated and why the parties agreed what they did (although note that such records are rarely admissible in any subsequent dispute as to the meaning of the clause). 
• Monitor the sector. A clause is more likely to be reasonable if it reflects industry practice.

A realistic approach

A "blanket" exclusion which prevents, as opposed to merely limits, recovery of damages even for a serious default is not automatically ineffective. The broader the exclusion, though, the clearer the wording must be for it to be effective.²¹  However, wherever it is commercially acceptable, parties might consider limiting liability rather than seeking to exclude it altogether, as a sensible cap on liability is more likely to be upheld than a blanket exclusion.²²

Liability for warranties which have been given expressly should not be excluded. Liability should never be excluded for dishonesty (e.g. fraud or fraudulent concealment), although it is possible to distinguish fraud or dishonesty by an agent in the performance of the contract (Frans Maas (UK) Ltd v Samsung Electronics (UK) Limited)²³.

A specific approach for indirect/consequential loss

It is common to see clauses which accept liability for limited types of loss or damage but which attempt to exclude or restrict liability for "indirect", "consequential" and/or "economic" loss. "Indirect" and "consequential" losses are widely accepted as the same thing, i.e. losses which fall under the second limb of Hadley v Baxendale (1854) 9 Ex. 341. Under that second limb only loss that can reasonably be supposed to have been in the contemplation of both parties at the time the contract was made can be recovered.²⁴  Only the type of loss needs to have been in the contemplation of the parties at the time, not the amount of loss.

Whether an exclusion of "consequential loss" catches financial loss such as loss of profits depends on the circumstances of the contract in question. In many cases such losses will be direct²⁵ (for example where they can ordinarily be expected to flow from a breach) and in some they will be indirect. (Note, however, that losses which were outside the contemplation of the parties will be too remote to be recoverable in any event.)   

One approach is to exclude identified, defined categories of loss (e.g. wasted management time; loss of production,  business, or expectation; or the cost of getting items from another source). However, this can produce tortuous drafting. An alternative method is to accept liability for all losses, whether direct or indirect, but subject to a sensible financial cap. 

Redefining contractual duties 

Defining contractual obligations more widely can assist in reducing the potential for a breach of contract, for example, agreeing to perform a contract within a range of dates rather than setting a specific date on which performance must take place, or promising to use reasonable endeavours rather than an absolute obligation.²⁶  

Other approaches

Exclusion clauses can take a variety of forms. Rather than expressly excluding liability, some clauses seek to limit the type of loss which is recoverable or the remedies available. An example of such a clause would be a seller providing a buyer with a right of repair or replacement in respect of defective products rather than a right to reject the goods. 

Another possibility is to put a time limit upon the period in which defects may be notified or legal proceedings issued (e.g. no liability unless buyer notifies the seller of any damage to delivered goods within 28 days of delivery). Clauses like this are limitation rather than exclusion clauses and, as such, are not construed so strictly as blanket exclusions of liability. Nonetheless, care should be taken in standard form contracts to ensure that they are reasonable.

1. See Pegler v Wang (UK) Limited (2000) BLR 218, in which the judge stated that if the defendant had wanted to exclude liability for certain matters then it should have done so expressly.
2. For example, the Court of Appeal decision in Persimmon Homes Ltd v Ove Arup & Partners Ltd [2017] EWCA Civ 373.
3. [2017] EWCA Civ 373.
4. [2004] EWHC 2924 (Comm).
5. Persimmon Homes Ltd and others v Ove Arup & Partners Ltd [2015] EWHC 3573 (TCC); confirmed in Persimmon Homes Ltd v Ove Arup & Partners Ltd [2017] EWCA Civ 373.
6. [1996] 2 All ER 573.
7. [1996] 4 All ER 481.
8. KG Bominflot Bunkergesellschaft fur Mineraloele mbH v Petroplus Marketing AG (The Mercini Lady) [2010] EWCA Civ 1145.
9. Unfair Contract Terms Act 1977, s.11(1).
10. [1992] 1 QB 600 at 608 per Stuart Smith LJ.
11. [2001] 1 All ER (Comm) 696.
12. [2008] EWCA Civ 361.
13. Raiffeisen Zentralbank Osterreich AG v Royal Bank of Scotland plc [2010] EWHC 1392.
14. [1983] 1 WLR 964; [1983] 1 All ER 101.
15. [1984] 2 Lloyd's Rep 211.
16. [2007] EWHC 562.
17. [2018] EWCA Civ 1371.
18. Stewart Gill v Horatio Meyer & Co Ltd [1992] QB 600 – although exactly what the court should regard as a "term" for these purposes may be an arguable point particularly, for example, where a clause consists of a number of separate and distinct components. See Watford Electronics Ltd v Sanderson CFL Ltd [2001] 1 All ER (Comm) 696 for an example where the court was prepared to view a clause as comprising separate terms.
19. For an illustration of the court severing a clause see Regus (UK) Limited v Epcot Solutions Limited supra.
20. See Trident Turboprop (Dublin) Ltd v First Flight Couriers [2008] 2 Lloyd's Rep 581.
21. Photo Production Ltd v Securicor Transport Ltd [1980] AC 827; [1980] 2 WLR 283.
22. Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd, supra 101.
23. [2004] EWHC 1502 (Comm).
24. See also Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) [2008] 3 WLR 345: a claimant will not be able to recover losses for which the breaching party cannot reasonably be assumed to have accepted responsibility.
25. See for example University of Keele v Price Waterhouse [2004] EWCA Civ 583.
26. Note, however, that complying with a "reasonable endeavours" obligation can, nevertheless, involve substantial costs for the obligor as it can be interpreted as involving taking such steps which a prudent and determined person acting in their own interest and anxious to achieve what is required would take (see A Turtle Offshore SA v Superior Trading Inc (2008) EWHC 3034 (Admlty).