The High Court (Constable J) has held that a limitation of liability clause in a contract for the digital transformation of the services of a non-departmental public body provided a single, aggregate cap that applied to all claims rather than multiple, separate caps.
The digital transformation project was beset by delays, with each side blaming the other. The clause capping the contractor’s liability provided that its “aggregate liability”:
Constable J held this provided for a single cap rather than multiple caps because:
• The words “the aggregate liability … in respect of all other claims, losses or damages shall in no event exceed” clearly indicated that the clause set out the contractor’s total liability irrespective of however many claims, losses or damages might exist.
• The words “per claim” were absent.
• While the “claim under consideration” suggested more than one claim may be possible, the netting off that followed demonstrated that the parties did not intend the capped sums to be additive.
The limitation clause also excluded liability for loss of profits. The contractor claimed for loss of revenue, arguing that anticipated cost savings were not realised due to customer delays and this meant reduced net revenue. Constable J accepted the customer’s submission that this claim was in fact a claim for loss of profits by another name and, as such, was excluded by the contract.
In2 the bargain 