Consequential loss clauses form an essential and integral part of almost all commercial contracts and also of standard form mutual contractual indemnity regimes. Despite the fact that they have long been in use, they are consistently the subject of litigation and recent cases demonstrate that the aspirations of their drafters are, more frequently than not, simply not achieved even if they have been ‘well’ drafted.
This talk took the issue on (from a recent talk given by Lionel Persey QC) to the next stage of the debate and considered and analysed the recent relevant case law on so-called ‘successful’ consequential loss clauses, including Kudos Catering v Manchester Central Convention Complex  EWCA Civ 38; AB v CD  EWCA Civ 229; Fujitsu Services v IBM United Kingdom  EWHC 752 (TCC) and Transocean Drilling v Providence Resources  EWHC 4260 (Comm).
It sought to identify what in fact such clauses were meant to (and can legitimately) achieve and aimed to set some straightforward, pragmatic guidelines for drafting these clauses, as well as advised clients on their practical use and scope of application once a claim arises. Simon presentedworked examples for discussion and comment.
About the Speaker
Simon Rainey Q.C. is one of the best-known and highly regarded practitioners at the UK Commercial Bar with a reputation for his intellect, advocacy skills,commercial pragmatism and commitment to client care. He was Counsel for the successful buyers in The Union Power.
He regularly handles substantial and high value commercial disputes arising out of widely differing commercial contracts and contexts, usually with an international aspect and often involving pre-emptive applications such as worldwide freezing orders and complex issues relating to jurisdiction, conflicts of law and enforcement as well as commercial fraud. Simon is also particularly well-known for his expertise in all aspects of shipping and maritime law with a particular focus on energy and oil/gas disputes at all levels of the industry from construction and production to joint ventures, production sharing agreements and all aspects of trading contracts, as well as liability issues arising from rig and offshore field casualties and cases at the cutting edge of energy technology involving wind farms, new generation oil rigs and LNG.
Simon has been recognised for many years by both Chambers & Partners (UK, Global & Asia) and the Legal 500 as a Leading Silk in the areas of “Commercial Dispute Resolution”, “International Arbitration”, “Energy and Natural Resources”, “Shipping/Commodities” and “Insurance””. The most recent editions note Simon as “one of those super silk guys who has the judges eating out of his hands”; “hard-working, diligent and rapier-like in cross-examination”; “…a ferociously intelligent, calm advocate who is imbued with great authority.. fast approaching super silk level,” , “he can go into bat confidently against anyone at the Commercial Bar”…”.
Simon also sits as a Deputy High Court Judge in the Commercial Court and as an International Arbitrator.