EXCLUSION CLAUSES- Be clear and unambiguous

The Court of Appeal have recently reached their decision in Persimmon Homes v. Ove Arup Partners. In the High Court decision it was held that Ove Arup could rely on an exclusion clause they inserted in their appointment letter to avoid liability for asbestos. Persimmon Homes appealed arguing that the exclusion clause did not work to exclude liability for negligence. The wording of the exclusion clause was “liability for any claim in relation to asbestos is excluded”. The Court of Appeal upheld the High Court’s decision and said the exclusion clause was all embracing. Interestingly, the Court of Appeal also commented on the contra proferentum rule of construing documents. This rule says that if there is ambiguity in a document then it is construed against the seller or landlord (as the case may be). The Court of Appeal said that this rule would now very rarely be invoked – especially where the parties were of equal bargaining strength.