Much judicial ink has been spilled on the proper approach to attempts by parties to limit or exclude their liability under a contract. This has commonly been done through exclusion or limitation of liability clauses and, more recently, through “net contribution” clauses that seek to limit a party’s liability based on the liability owed by others. A recent decision by the Technology and Construction Court, Mott MacDonald Ltd vs Trant Engineering Ltd [2021] EWHC 754, indicates that courts will uphold such provisions, if drafted properly. 

The case related to construction of a £55m power generation facility at RAF Mount Pleasant in the Falklands. Mott MacDonald was engaged by the main contractor, Trant, to provide design services under a professional services agreement. The agreement contained various broadly worded exclusions of liability, including an attempt by Mott to limit its total overall liability to £500,000.

A dispute arose in mid-2016 as to the scope of work and the payment due to Mott. This led in June 2017 to it withdrawing Trant’s access to the ProjectWise BIM platform used on the project, meaning Trant was unable to access the detailed design files and calculations.

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