Force Majeure Clauses UK: Disputes & How They Work

What this document is

A force majeure clause is a contractual provision that lets one or both parties suspend, delay or escape their obligations when a specified extraordinary event prevents performance. It is important to understand that force majeure is not a doctrine of English common law in its own right.

Unlike some civil law jurisdictions, England and Wales does not imply a force majeure concept into contracts automatically. If the clause is not in the written agreement, or if the event in question does not fit the wording, the party seeking relief has no freestanding right to rely on 'force majeure' as a general principle.

The closest common law equivalent is the doctrine of frustration, which operates on a much narrower basis. That is why the drafting of the clause itself, the precise list of qualifying events, the notice requirements, and the effect on obligations, matters enormously.

Every dispute tends to come back to the exact words on the page and whether the party invoking the clause met the conditions set out in it.

How to use this document

1. Check the exact wording of the clause. The first step in any dispute is reading the clause as written, not as remembered. Does it list the event that has occurred? Does it use general catch-all language such as 'any event beyond the reasonable control of the parties'? The scope of the clause is set by its drafting, and courts in England and Wales tend to interpret force majeure provisions narrowly.
2. Establish that the event actually prevented performance. It is not enough for the event to make performance harder, more expensive, or less profitable. The party invoking the clause usually needs to show that performance was prevented, hindered or delayed in the way the clause requires. Increased cost alone is rarely sufficient, and arguments about this distinction are a frequent source of litigation.
3. Confirm the event was beyond reasonable control and unforeseeable. Most clauses require the event to be outside the control of the affected party and, in many cases, not reasonably foreseeable at the time the contract was signed. A pandemic signed around in mid-2021 may be treated very differently from one invoked for a contract signed in 2018.
4. Show reasonable steps were taken to mitigate. English courts generally expect the party relying on force majeure to have done what it reasonably could to avoid or reduce the impact of the event. Failing to explore alternative suppliers, routes, or methods of performance can undermine the claim, even where the triggering event itself is clear-cut.
5. Follow the notice and procedural requirements. Most force majeure clauses set out strict notice obligations, including time limits, the form of notice, and what information must be provided. Missing these steps can defeat an otherwise valid claim. Keep a clear paper trail of when the event occurred, when notice was given, and what mitigation was attempted.

Common questions