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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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NEWS
More than 100 teams from the legal and financial services sectors competed in five sports at the 51st Law Society RFC Festival of Sport earlier this month
Part-time status need only be an effective cause of less favourable treatment, rather than the sole cause, the Supreme Court has held in Augustine v Data Cars
Britain’s new acknowledgement that Israel’s occupation is unlawful, and accompanying settlement-goods ban and sanctions, is significant but overdue, argue Danny Friedman KC and Victor Kattan in NLJ this week
New planning fee rises, wider trade union access rights and a service-by-email trap feature in Stephen Gold’s latest Civil Way
Existing defamation law can respond to AI ‘hallucinations’, but allocating responsibility will prove harder where outputs reach users without human intervention
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