Exclusion/Limitation clauses

• For exclusion/limitation clauses, the courts will first consider whether the clause is incorporated.
• To establish whether the clause is incorporated the courts will consider things such as:

  1. Is the contract signed (L'Estrange)

  Not bound if there is a misrepresentation as to the content - Curtis
• To establish whether the clause is incorporated the courts will consider things such as:

  2. Did the parties have knowledge of the term at the time of contracting (Olley)
• To establish whether the clause is incorporated the courts will consider things such as:

  3. Is the term on a contractual document (Chapelton)
• To establish whether the clause is incorporated the courts will consider things such as:

  4. Were reasonable steps taken to bring the clause to the attention of the other party (Thomson) - must be clear, prominent and available at the time of contracting
• A term can also be incorporated through previous dealings (Hollier v Rambler Motors)
• When interpreting the clause, the court will give English words their ordinary meaning (Pink Floyd Music) and apply an objective (reasonable man) test for ambiguous words (Investors Compensation Scheme).
• The Contra Proferentum rule - any ambiguities will be construed against the party relying on the clause
• Consumer Rights Act 2015

  • supply of goods and services cannot be excluded or restricted
  • traders cannot exclude liability for death or personal injury resulting from negligence

  s62 - all terms must be fair, otherwise the term is void
• Unfair Terms Act 1977

  • cannot exclude liability for death or personal injury from negligence
  • businesses cant exclude liability for breach
• Unfair Terms Act 1977

  s11

  1. resources that the D could expect to be available for meeting their liability
  2. how far it was open to the D to cover themselves by insurance

  (Mitchell v Finney Lock Seeds)
• Red hand rule - the more unreasonable the clause is, the greater the notice which must be given of it