Court of Appeal allows appeal so law on deliberate fundamental breach can be clarified

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Shared Network Services Limited v Nextiraone UK Limited, Court of Appeal

The Court of Appeal has admitted that there is a conflict between the rulings in two cases in the High Court in relation to limitation of liability clauses. In giving the ruling in this case, as a result of that conflict, the Court of Appeal has granted permission for an appeal to be heard in the hope that the conflict will be resolved.

The ruling of the High Court in Internet Broadcasting Corporation v NetTV Hedge Funds was that there is a presumption that exclusion and limitation of liability clauses cannot exclude liability for deliberate repudiatory breach, whereas the ruling in AstraZeneca v Albermarle said that exclusion clauses could cover deliberate repudiatory breach.

Whilst the Court of Appeal has granted permission for an appeal in principle, but it is not yet clear whether an appeal will go ahead, which is a matter for the parties.