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20 October 2011 / Melanie Shefford , Ceri Morgan
Issue: 7486 / Categories: Features , Limitation , Commercial
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Once more unto the breach

Do exclusion or limitation of liability clauses apply to cases of deliberate repudiatory breach, ask Ceri Morgan & Melanie Shefford

For the last two years, there has been widespread concern among legal practitioners that contractual clauses excluding or limiting liability (unless clearly drafted) may not operate where there has been a deliberate repudiatory breach of that contract by one of the parties. These concerns arose following the High Court decision in Internet Broadcasting Corporation v MAR LLC (Marhedge) [2009] EWHC 844 (Ch), [2010] 1 All ER (Comm) 112 (NetTV), in which Mr Moss QC, sitting as a High Court judge held that there was a rebuttable presumption that an exclusion clause should not apply to a deliberate personal repudiatory breach of contract.

However, the NetTV decision has recently been subject to scrutiny by Mr Justice Flaux in the case of AstraZeneca UK Limited v Albemarle International Corporation and Albemarle Corporation [2011] EWHC 1574. Flaux J concluded in obiter dicta that no such presumption existed and any question of limitation

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MOVERS & SHAKERS

Gateley Legal—Jack Kelly

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NEWS
A series of recent decisions has clarified important principles across property law, from perpetuities to lease renewals and public rights over land
Employers cannot rely on wellbeing services alone to defend workplace stress claims after a High Court decision awarding almost £1m to an overworked employee
Andy Burnham's brand of 'Manchesterism' could offer fresh thinking on legal aid and access to justice if it reaches Westminster, according to Roger Smith, NLJ columnist and former director of JUSTICE
The constitutional fallout from a change of prime minister, rather than the politics, is under scrutiny as questions arise over the limits of executive authority in a leadership transition
The legal profession is undergoing a fundamental shift from selling services to creating technology-enabled products, according to Professor Luke Mason, Head of School of Law at Regent's University London
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