Excluding liability for "anticipated profits"

In EE Ltd v Virgin Mobile Telecoms Ltd [2025] EWCA Civ 70 the Court of Appeal held that a claim for expectation loss damages was excluded because it fell within the scope of an exclusion clause which excluded liability for "anticipated profits". The conclusion was reached as a matter of interpretation of the particular words in this contract and care should be taken before seeking to extend it to other contracts where the wording is not identical. It is also worth noting that the decision of the Court of Appeal was a majority decision and that one of the judges in the majority, Coulson LJ, acknowledged that he found the issue not to be one which was "easy to decide". The case illustrates the importance of using clear words when drafting an exclusion clause in order to avoid difficulties of the type that arose on the present facts. The case also demonstrates the potential importance of claims for damages in respect of expenditure which has been wasted as a result of a breach of contract because a claim for wasted expenditure will not generally be caught by a loss of profits exclusion clause.