BuildLaw Issue 33 November 2018 | Page 40

approach is to interpret such clauses according to their natural meaning rather than by reference to any preliminary categorisation. It remains to be seen whether the distinctions previously made as to force majeure clauses will survive these recent developments. In the meantime, parties would be well advised to pay close attention to the drafting of force majeure clauses as small changes in the language used can, on the present state of the law, have significant implications for the interpretation of the clause.
The court’s findings as to the assessment of damages are also significant. They would appear to make the conclusion reached as to the “but for” test largely theoretical. The court’s findings mean that, for practical purposes, the defence of a claim on force majeure grounds would not need to surmount the “but for" test (save perhaps where the claim is one for a remedy other than damages).
The court’s reasoning in this regard may well require clarification and development in future cases. The suggestion that damages should be assessed by reference to the reasons why a party is in breach, rather than solely by reference to the breach itself and its consequences, appears to be novel. A similar logic could well be said to apply to a variety of other scenarios, such as termination, where the hypothetical application of the force majeure clause (i.e. had a party otherwise been ready and willing to perform) might be said to negate a claim for damages.
References:
Classic Maritime Inc. v Limbungan Makmur SDN BHD [2018] EWHC 2389 (Comm).

About the Authors

Adrian Bell
Partner, London

Victoria Peckett
Partner, London

Phillip S. Ashley
Partner, London

Aidan Steensma
Of Counsel, London


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