Can An Exclusion Clause Or Liability Cap Apply To A Deliberate Or Fundamental Breach? (Mott MacDonald V Trant Engineering)

• Published date: 11 May 2021
• Law Firm: Bryan Cave Leighton Paisner LLP
• Author: Mr Marcus Birch

Summary

In Mott MacDonald Ltd v Trant Engineering Ltd [2021] EWHC 754 (TCC) , the TCC held that a clause in a professional services agreement containing a cap on liability, exclusions on liability, and a net contribution clause applied even to fundamental, willful or deliberate breaches of contract. In this casenote, first published by LexisPSL, Marcus M Birch takes a closer look at this case.

Mott MacDonald Ltd v Trant Engineering Ltd [2021] EWHC 754 (TCC)

Construction analysis: The Technology and Construction Court gave summary judgment, holding that a clause in a professional services agreement containing a cap on liability, exclusions on liability, and a net contribution clause applied even to fundamental, willful, or deliberate breaches of contract. It did so on the basis that the clause was worded broadly enough to cover such breaches, and there was no need for it expressly to refer to them. The court upheld longstanding authority on the interpretation and application of exclusion clauses. As a result, when the case proceeds to trial, the counterclaim valued at around '5m will need to overcome all the exclusions and will in any event be worth at most '500,000. Written by Marcus M Birch, associate director at Bryan Cave Leighton Paisner LLP, London.

What are the practical implications of this case?

This case restates and reaffirms the court's established approach to interpreting and applying exclusion and limitation clauses. It repeats that there is neither a rule of law whereby clauses do not apply where the party...