The appointment of a firm of engineers said that: “Liability for any claim in relation to asbestos is excluded.” It also contained a limitation of aggregate liability for pollution and contamination to £5,000,000. English courts have, traditionally, taken a restrictive approach to interpreting exemption and limitation clauses but has that approach changed?
In Persimmon v Ove Arup Mr Justice Stuart-Smith said that there is an increasing recognition that parties to commercial contracts should be left free to apportion and allocate risks and obligations as they see fit, particularly where insurance may be available. Exclusion and limitation clauses are subject to the same rules of construction as any other provision and the court’s task is to identify what a reasonable person with all the background knowledge reasonably available to the parties would have understood the parties to have meant.
The relevant agreement and associated warranties were examples of contracts where businessmen capable of looking after their own interests and deciding how contract performance risks could most economically be borne had reached an agreement that the court should be very slow to disturb or to charac- terise as unbusinesslike. The price paid could be said to reflect the commercial risk allocation and the parties were entitled to apportion the risk of loss as they saw fit. The limitations and exclusions in ques- tion were clear in their meaning and covered the liabilities advanced by the claimants.
Persimmon Homes Ltd & Ors v Ove Arup & Partners Ltd & Anor  EWHC 3573