Exclusion clauses and their interpretation

In Pinewood Technologies Asia Pacific Ltd v Pinewood Technologies plc [2023] EWHC 2506 (TCC), Joanna Smith J held that an exclusion clause in the contract between the parties had used sufficiently clear words to exclude the defendant's liability to the claimant in respect of the losses which the claimant sought to recover. In so concluding, she rejected the submission that an exclusion cannot apply to the non-performance of contractual obligations or to repudiatory breaches of contract (and in respect of the latter point she held that the word "breach" was apt to encompass a repudiatory breach of contract given that it had been used by the parties as an "umbrella term" to capture all forms of breach). It was held that the contract between the parties did not fall within the scope of section 3 of the Unfair Contract Terms Act 1977 because the negotiation that had taken place between the parties, and the changes which that negotiation had made to the defendant's standard terms, meant that the contract had not been concluded on the defendant's written standard terms of business.