In the recent case of AstraZeneca UK Limited v Albermarle International Corporation and another [2011] EWHC 1574 (Comm), the High Court has criticised the "strong presumption" applied in Internet Broadcasting Corporation Ltd (t/a NETTV) and another v MAR LLC (t/a MARHedge) [2009] EWHC 844 (Ch) that an exclusion clause does not apply to a deliberate repudiatory breach.

Whilst this is an interesting examination of the NETTV decision, which has raised issues for commercial parties and commentators alike, the comments on this issue in AstraZeneca are obiter since the judge held that the breach in that case had been neither deliberate nor repudiatory. There is a need for commercial contract drafters to remain cautious in the drafting of exclusion clauses pending clear appellate authority and they may wish to include express wording to put the matter beyond doubt.

Click here for our bulletin on the case.