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TRG UPDATE - October 2021


Welcome to the latest issue of the TRG Update.

In this edition we feature 4 recently decided cases covering:

  • So called ‘lawful act’ duress
  • The impact of partial completion on the enforceability of liquidated damages
  • The impact of termination on LDs
  • Reasonableness of a limitation clause under UCTA

If you have any questions on any of the issues raised in these or any of the other cases we have featured in the past, please get in touch. Equally, if you have any of your own observations on any of the cases, we would be interested to hear them.

An archive of previous cases featured in our Updates is available here.

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‘Lawful act’ duress

Pakistan International Airline v Times Travel (Supreme Court) [2021]

This case involved questions regarding the existence and scope of so called ‘lawful act’ or ‘economic’ duress – pressure exerted in the course of the negotiation of a contract, thereby potentially entitling the party subject to the duress to rescind the contract in question. When does a particular demand made in the course of contract negotiations amount to illegitimate [unlawful] economic pressure, as opposed to the pressure of normal [lawful] commercial bargaining? More>>>

Liquidated damages and partial completion

Ballymore v Dobler (High Court) [2021]

It is now relatively rare for liquidated damages provisions in contracts between commercial organisations to be declared by the courts to be a penalty and therefore unenforceable. However, it does still happen occasionally, and this case might have been considered to be a possible candidate. In the long run, however, this case may be more significant for what the court also said about an LDs clause operating as a cap on liability ... More>>>

Liquidated damages and the impact of termination

Triple Point Technology v PTT (Supreme Court) [2021]

This case concerned the impact of validly terminating a contract for delay in circumstances where there is an active LDs provision under which LDs are accruing in respect of the delay. The Court of Appeal came to a conclusion that seemed to potentially limit the ambit and effectiveness of LD provisions in circumstances where the customer ultimately terminates. The case also looked at the relationship between LD provisions and caps on liability as well as a potential carve out from the liability cap for negligence... More>>>

Unreasonable exclusion under UCTA

Phoenix Interior v Henley Homes (High Court) [2021]

English contract law very largely respects the principle of freedom of contract, allowing commercial businesses to decide whether and upon what terms to contract, acting in their own best interests. The primary exception to this is the Unfair Contract Terms Act dating from as long ago as 1977 which requires that certain limitation and exclusion clauses must satisfy a ‘reasonableness’ test in order to be enforceable. It is therefore of critical importance for contracting parties and their advisors to be aware of the latest judgments from the courts as to when a clause might be held to be unreasonable... More>>>

This email is intended as general information only and not as legal advice. If you require any advice, please contact us.

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TRG Updates contain practical summaries of important legal developments in commercial contract law, including information technology and related areas.

TRG BRIEFings are brief ‘alerts’ to key contract, technology and intellectual property related legal issues and developments.

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