Q&As

What is the difference between negligence and gross negligence in commercial contracts?

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Published on LexisPSL on 20/02/2018

The following Commercial Q&A provides comprehensive and up to date legal information covering:

  • What is the difference between negligence and gross negligence in commercial contracts?
  • Negligence vs gross negligence
  • Contract interpretation
  • ICDL GCC Foundation FZ-LLC v The European Computer Driving Licence Foundation Ltd

What is the difference between negligence and gross negligence in commercial contracts?

In this Q&A we refer to the concepts of negligence and gross negligence within a business-to-business contract, and not, gross negligence in relation to the crime of corporate manslaughter.

Negligence vs gross negligence

There is no English law concept of gross negligence (other than in criminal law) and so the courts will seek to give meaning to the term based on the terms of the contract in which it is used.

In Camerata Property v Credit Suisse Securities (Europe) Limited, Justice Andrew Smith held:

'…the relevant question is not whether generally gross negligence is a familiar concept in English civil law, but the meaning of the expression in [the contract]. I accept that the distinction between gross negligence and mere negligence is one of degree and not of kind as such, it is not easy to define or even to describe with any precision'. However, as Mance J recognised in Red Sea Tankers Ltd v Papachristidis (The 'Ardent') [1997] 2 Lloyd's Rep 547, 586 (not reported by LexisNexis®), 'If the matter is viewed according to purely English principles of construction, "Gross" negligence is clearly intended to represent something more fundamental than failure to exercise proper skill and/or care constituting negligence.(emphasis added)’

In Great Scottish & Western Railway Co Ltd v British Railways Board, (not reported by LexisNexis®), 10

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