Gross negligence

Is there anything to be gained, under an English law contract, from insisting your liability be restricted to losses occasioned by your gross negligence?

This correspondent is of the view that that is hard to sustain in the face of stout objection. These days, Gross negligence does means something at English law – obiter - but it not entirely clear what:

“Certainly the last time this issue came before the Court of Appeal they decided that the debate about its meaning was a “somewhat sterile and semantic one” (Linklaters publication)

The tack one gets obliged to take is “look, if we muck up we’re not going to stand on ceremony here, so don’t worry about the legal docs” – which isn’t the most edifying position for a lawyer to take, implying as it does that you may as well not have a legal document at all. And it does beg the question why one is bothering to make an argument about this in the first place. After all if you’re negligent, you're negligent. It isn’t a great look to try to defend yourself against an innocent, irate and out-of-pocket client on the basis you’ve only been a bit negligent so shouldn't have to compensate.

See also

• Commercial reasonableness