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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
Restrictions on workplace non-disclosure agreements could make settlements slower, more complex and more expensive when reforms expected in 2027 take effect
Private prosecutors face closer scrutiny under Crown Prosecution Service guidance designed to strengthen accountability and consistency when intervention is requested
Foreign states cannot necessarily claim immunity for cyber operations launched abroad against computers in Britain, following a divided Supreme Court ruling
Defendants who make unsupported complaints about their lawyers risk losing legal aid while confiscation proceedings continue without representation
Lawyers advising Russian clients face different sanctions restrictions across the UK, EU and US, despite their shared objective of increasing pressure on Russia
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