The last year has been a turbulent time for businesses as the effects of Covid-19 and Brexit continue to hit home.
The resulting disputes are now starting to percolate through to the English Courts, whose response has been to maintain stability and uphold the certainty of contract.
Despite the opportunities to innovate – for example, the attempt to persuade the Court to recognise a concept of “temporary frustration” to alleviate the impact of Covid-19 lockdowns – there has been little new contract law so far in 2021. A common theme from the decisions in 2021 is that, unless there is specific relief provided for by the contract itself, the English Courts will rarely intervene to alter the bargain the parties have made.
In the one genuine development this year, the Supreme Court confirmed that the doctrine of lawful act duress exists in English law; however, it has only done this in a cautious and incremental way. Otherwise, there have been no significant departures from existing legal principles. However, understanding how existing principles have been applied by the Courts is illuminating and flexibility within the law remains. For example, the Courts are still prepared to correct irrational drafting mistakes and will still ensure that contractual discretions are exercised properly. Similarly, the scope and effect of exclusion or limitation clauses remains a live issue, as we highlighted last year.
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