Exclusion clauses after NetTV

An article considering the implications of the recent decision in Internet Broadcasting Corporation (trading as NetTV) v MAR LLC (trading as MARHedge) [2009] EWHC 844 for the use of exclusion clauses by businesses, including: a summary of the NetTV decision and the questions it raises for businesses; a discussion of whether businesses should amend their exclusion clauses in the light of the decision; suggested drafting options (with pros and cons); practical points to consider when drafting or negotiating exclusion clauses; and PLC Commercial's view on whether an exclusion clause should contain an express carve-out for deliberate personal repudiatory breaches.

PLC Commercial thanks Iain Monaghan and Alexis Roberts of Pinsent Masons LLP and Andrew McLean of Weil, Gotshal & Manges for their contributions to this article.

NOTE: The NetTV decision was strongly criticised by Flaux J in AstraZeneca UK Limited v Albemarle International Corporation [2011] EWHC 1574, who said that he did not consider it to be good law. See further Legal update, High Court considers NetTV decision and whether there is a presumption that a party in deliberate repudiatory breach cannot rely on exclusion clause and in particular the Comment, which considers whether the presumption NetTV sought to introduce can now be disregarded. The Court of Appeal has expressly recognised that the law in this area needs to be clarified (Shared Network Services Ltd v Nextiraone UK Ltd [2012] EWCA Civ 1171).