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The meaning and interpretation of gross negligence and wilful misconduct under English law

  • United Kingdom
  • Construction and engineering

27-10-2017

This paper analyses the terms ‘gross negligence’ and ‘wilful misconduct’ which continue to be used regularly as carve-outs from exclusion or limitation clauses in construction contracts. However, parties are reluctant, or unable, to define the terms in those contracts and they are left to the courts to grapple with. The paper examines the relevant authorities and the development of the treatment of both gross negligence and wilful misconduct, noting that the terms appear to apply a high bar to a successful attempt to disapply an exclusion clause. The paper assesses the specific problems likely to arise in practice, of causation, multiple breaches, delay, vicarious liability and termination. Concluding that the two terms are here to stay, the authors use the relevant authorities and apply business common sense to suggest working definitions of gross negligence and wilful misconduct which could be a starting-point for contracts or used as guidance and criteria to assess whether an action or inaction falls within the auspices of these terms.

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