Force majeure provisions tested....

In 2 Entertain Video & Others v Sony DADC Europe Ltd [2020], the court considered a force majeure clause that removed liability if it was "beyond the reasonable control of the parties". The case arose following the 2011 London riots, the claimant had equipment stored in a warehouse belonging to the defendant. During the riots, intruders broke into the warehouse and started a fire which destroyed the equipment. The plaintiff sued and the defendant tried to rely on the force majeure clause.

Decision: the court held that the force majeure clause did not exclude the liability of the defendant as irrespective of the riots (which it was accepted were unforeseen) they could of taken steps to improve security at the warehouse.

View: the decision is correct but it highlights how narrow generic force majeure provisions will be interpreted. It is not enough to simply have an event that creates disruption but you also need to show that the event itself meant that you could not perform your obligations. The current parallel with COVID is obvious and raises a number of interesting dilemmas. If, for example, you fail to comply with a contract because you took the decision to shut the factory (to protect staff etc) then can you rely on a generic force majeure where the argument will inevitably be that you could have taken other social distancing steps to enable you to keep the factory open.