On 18th April 2011, Andrew Butler and Timothy Polli, both of Tanfield Chambers, gave a seminar to members of Glovers on the implications of the Axa Sun Life case and the relationship between ‘No Reliance’ clauses, ‘Entire Agreement’ clauses and the Unfair Contract Terms Act 1977.
In Axa Sun Life Services Plc -v- Campbell Martin and Others ([2011] EWCA Civ 133) the Court of Appeal considered a clause drafted as follows:
“This agreement and the Schedules and documents referred to herein constitute the entire agreement and understanding between you and us in relation to the subject matter thereof. Without prejudice to any variation as provided in clause 1.1, this Agreement shall supersede any prior promises, representations, undertakings or implications whether made orally or in writing between you and us relating to the subject matter of this Agreement but this will not affect any obligations in any such prior agreement which are expressed to continue after termination.”
The Court of Appeal construed the clause narrowly and was in unanimous agreement that the clause was ineffective to exclude collateral warranties. The exclusion of ‘representations’ did not preclude the parties from raising a claim in relation to reliance on misrepresentations made during the pre-contract stage and therefore the wording used in the Axa Sun Life case was not sufficient to prevent a party to the contract making a claim in tort for misrepresentation.
Timothy Polli said “Parties to contracts must carefully consider the drafting of any entire agreement clause. The Axa Sun Life case illustrates that the Courts will construe such clauses narrowly and any other attempt to exclude liability for pre-contractual misrepresentations must be expressed in the clearest terms.”
Andrew Butler noted that “Recent case law demonstrated that the Courts have shown that they will give effect to the intention of the parties to an agreement where such intentions are clearly expressed.”
These clauses cannot therefore be considered as standard boiler plate provisions but need to be carefully drafted to suit the circumstances of each individual agreement.
Please note that this information is provided for general knowledge only and therefore specific advice should be sought for individual cases.
For further information, please contact Paul Gilks at or Peter Francis at
