Wilful misconduct and deliberate default in commercial contracts

Produced in partnership with Tim Wright of Fladgate
Practice notes

Wilful misconduct and deliberate default in commercial contracts

Produced in partnership with Tim Wright of Fladgate

Practice notes
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This Practice Note sets out guidance upon the meaning, use and importance of commonly used terms in exclusion and limitation of liability clauses in commercial agreements, including the terms: abandonment; wilful misconduct; and deliberate default. It considers how these terms have been interpreted via case law and includes tips for parties when drafting and negotiating commercial agreements.

What is an exclusion or limitation of liability clause?

An exclusion clause is a contractual term which sets out exclusions upon liability. It is sometimes referred to as an exemption clause. A limitation of liability clause is a contractual term which sets out limitations upon liability. Both of these types of clauses are subject to statutory and common law controls. For more on those general controls, see Practice Note: Exclusion and limitation of liability and for an example limitation of liability clause, see Precedent: Limitation of liability clause.

What do the terms used in these types of clauses mean and why is this important?

The terms used in an exclusion or limitation of liability

Tim Wright
Tim Wright

Partner, Fladgate


Tim Wright is a partner in the corporate department at Fladgate.

He specialises in commercial, outsourcing and technology transactions across various sectors such as banking, insurance, healthcare and technology. Services include outsourcing, cloud computing, digital platforms and e-commerce, web development and hosting, software development and licensing, system integration projects, business transformation and digital projects, joint ventures, artificial intelligence and robotic process automation contracts, and wide-ranging procurement, commercial contracts and privacy issues.
Tim has acted for a number of pharmaceutical, banking and insurance companies, including GlaxoSmithKline, Dr. Reddy’s Laboratories, Sumitomo Dainippon Pharma, UBS, BNP Paribas, Cooperative Financial Services, Old Mutual, RSA, Phoenix Life, AXIS Capital, UBS and Goldman Sachs, as well as service providers such as Aon Hewitt, HCL Insurance, Storm Technologies, Company Watch and DST Systems, delivering a broad range of outsourcing and technology deals including information technology, facilities management, pensions administration, employee benefits administration, logistics, finance and accounting, and HR, as well as cloud computing, data processing agreements, and Workday, ERP (SAP, Oracle) and Office 365 implementations.

Since 2009, he worked extensively with GlaxoSmithKline on its global integrated facilities management outsourcing arrangements which has included strategy, extensive negotiations, scope expansions, service level agreements, service changes and re-procurements with GSK’s key FM vendors including CBRE and Sodexo.

Tim is a member of the Law Society of England & Wales, the Law Society of Ireland, ITechLaw, the Global Sourcing Association, the International Bar Association and the Society for Computers & Law.

He qualified in 1992, joining Fladgate in January 2019 from Pillsbury Winthrop Shaw Pittman LLP. Tim is also qualified in Ireland.

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Jurisdiction(s):
United Kingdom
Key definition:
Misconduct definition
What does Misconduct mean?

The term to describe an act of misconduct by the employee.

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