How to Review a Consequential-Loss Exclusion Under English Law

Juno, Ops at a 26-person UK analytics SaaS, is about to treat “they excluded consequential loss including loss of profit” as the whole risk story. Finance Slack called lost profits off the table. Knowing how to review a consequential loss exclusion under english law is a 20-minute hunt: split Hadley limbs, mark including versus standalone, name wasted spend, then keep direct profit, split the list, or walk.

September 2026. English law; courts of England and Wales. The packet — the exact file set that will be signed — is the vendor MSA (master services agreement — the frame contract vendors hang order forms on) plus the order form. Order form about £3,500 a month. Go-live week four: the tool will raise and store customer invoices.

Section 13.2: neither party liable for any indirect or consequential loss including without limitation loss of profit, revenue, goodwill, anticipated savings and data. No “whether direct or indirect.” No wasted expenditure. Carve-out: death and personal injury caused by negligence only. AE Slack: standard waiver. Unbilled invoice revenue is the loss that hurts. Friday is booked.

Excluding “consequential loss including loss of profit” often does not exclude the lost profits that matter — and a standalone profits limb can wipe the only damages claim you have. Hill Dickinson (20 Jun 2022): two categories — direct and indirect. British Sugar [1997] EWCA Civ 2438 treats them as the same thing. Ordinary profits from this contract can still be first-limb.

Disclaimer: Checkory provides AI support, not legal advice. Consult a qualified lawyer for binding decisions.

Is “consequential loss” all the money that follows a breach?

No. Under England and Wales colour, undefined “consequential” or “indirect” usually means second-limb Hadley — special-circumstance loss — not every pound that follows a breach. Log “undefined = limb 2 unless the paper says otherwise,” or “complete-code — escalate.”

Do: split limb 1 versus limb 2. Don’t: treat “they excluded consequential loss” as a profits wipe. CMS England (01 Sep 2025): settled Court of Appeal authority that an undefined exclusion is second-limb only. Juno’s unbilled invoice revenue is the limb-1 candidate. Star Polaris [2016] EWHC 2941 (Comm) is a shipbuilding complete-code exception, not this SaaS MSA.

What does “including loss of profit” wipe?

Often no. “Including” or a parenthetical often makes the listed heads examples of indirect loss, not extra exclusions. Circle “including without limitation” on Section 13.2. Log examples-only, ambiguous, or standalone wipe. Juno’s paper is the including shape — treat Finance’s Slack as unproven.

Do: mark grammar, not the heading. Don’t: assume the list is a wipe. For example, 2 Entertain v Sony [2020] EWHC 972 (TCC): lost profits after a warehouse fire were the direct result of destroyed stock — not inside a parenthetical including-list. Fieldfisher: Fujitsu’s comma-list wiped all profit; Polypearl’s parenthetical wiped indirect only. Construction is clause-specific.

How do you spot a standalone profits limb that kills the only damages claim?

When the named heads sit as their own sentence, especially “whether direct or indirect,” not after “including.” That limb can wipe the only damages claim for a core breach. Wasted expenditure is a different animal unless those words are there.

Do: hunt a standalone profits limb and whether wasted spend is named. Don’t: sign a silent wipe of billing-outage loss as “standard boiler.” EE v Virgin [2025] EWCA Civ 70 (4 Feb 2025): a standalone “anticipated profits” limb did exclude EE’s £24.6m claim. Majority Zacaroli LJ + Coulson LJ; Phillips LJ dissented — 2:1. Soteria v IBM [2022] EWCA Civ 440: profit, revenue, savings “whether direct or indirect” still missed wasted expenditure. CISGIL moved from ~£12.9m net toward an £80m+ cap.

Which carve-outs must survive a heads-of-loss wipe?

Death and personal injury from negligence already cannot be excluded. Silence on fraud, IP, confidentiality, and data lets the list swallow what actually matters. Log surviving carve-outs, or “death/PI only — fail.” Juno’s paper carves death/PI only.

Do: demand express fraud, IP, confidentiality, and data. Don’t: treat death/PI only as the whole hunt. UCTA 1977 s.2(1) already bars excluding death or personal injury from negligence. s.2(2)/s.3 is colour — never a verdict that the list is void. HIH [2003] UKHL 6: you cannot exclude your own fraud in inducing the contract. Lost data as “consequential” is the wrong bucket for a billing database.

Is this the cap-number hunt or the stop-order hunt?

Neither. This hunt is the heads-of-loss list. If the fight is how much money the cap is, that is a different hunt. If the fight is whether a court can still order someone to stop, that is a different hunt.

Do: one sentence, then leave. Don’t: recompute fees-paid or redline a stop-order here. Direct profits that survive 13.2 can still die at 13.1 — compute the £ on the MSA liability-cap review guide. A profits wipe is an argument for keeping an injunction hatch — one sentence, then the injunctive-relief carve-out review.

When to keep direct profit, split the list, or walk?

Keep = redline “including” so first-limb profit stays recoverable, subject to the cap. Split = wipe indirect profit only if wasted spend, IP, confidentiality, and data still sit in the pot. Walk — do not sign Friday — if a standalone whether-direct-or-indirect wipe sits next to death/PI only, on a tool whose first-limb loss is lost invoices.

Success bar: a one-page log plus one Friday pause sentence. In practice: limb 1 vs limb 2 → including = examples or standalone wipe? → whether direct or indirect + wasted expenditure named? → carve-outs that must survive → not the cap’s £ / not the stop-order → keep / split / walk. Optional: upload the same PDF to document analysis for a first-pass — first machine pass extracting clauses before a human reads every page. A human still opens Section 13. Verify every High flag — an item scored high severity a named human still opens. Escalate a standalone wipe to counsel — a qualified lawyer, not the chatbot.