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Once more unto the breach

20 October 2011 / Melanie Shefford , Ceri Morgan
Issue: 7486 / Categories: Features , Limitation , Commercial
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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
One in five in-house lawyers suffer ‘high’ or ‘severe’ work-related stress, according to a report by global legal body, the Association of Corporate Counsel (ACC)
The Legal Ombudsman’s (LeO’s) plea for a budget increase has been rejected by the Law Society and accepted only ‘with reluctance’ by conveyancers
Overcrowded prisons, mental health hospitals and immigration centres are failing to meet international and domestic human rights standards, the National Preventive Mechanism (NPM) has warned
Two speedier and more streamlined qualification routes have been launched for probate and conveyancing professionals
Workplace stress was a contributing factor in almost one in eight cases before the employment tribunal last year, indicating its endemic grip on the UK workplace
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