In Markerstudy Insurance Company Limited v Endsleigh Insurance Services Limited3 a limitation of liability cap in a contract did not apply to limit statutory interest awarded by a court for breach of contract.

The limitation clause stated that: “Endsleigh’s total liability in contract… shall be limited to the aggregate amount of fees received”. David Steel J held that contractual interest is clearly a “liability in contract” and would be within the cap on liability. Statutory interest is of a different character – it is a discrete statutory liability arising from the exercise of the court’s discretion and was excluded from the cap.