Stewart Gill Ltd v Horatio Myer & Co Ltd

Lord Donaldson MR, noting there was "more than one way of killing a cat", held that clause 12.4 was within the scope of UCTA 1977 and it was unreasonable. He held that the purpose of section 13 was to stop precisely this variety of exemption clause: the 'no set off' provision in clause 12.4 had the same effect as an exemption clause because it purported to preclude a remedy for breach of contract, and was thus caught by section 13(1)(b) and in turn fell under UCTA 1977 section 3.

Stuart-Smith LJ held that 'but for' clause 12.4, Myer would have had a right to set off Gill's liability to it. Myer had an equitable right to set off Gill's claims against its claims against Gill. Therefore, clause 12.4 was excluding liability which Myer would have had. It was therefore ineffective under section 13(1)(b). Courts will assess the clause as a whole, not just the part alleged to be unreasonable. Section 11(1) reinforces this, that the relevant time is when the contract was made, not the time of breach.

• English contract law