Businesses could face a blizzard of legal actions if they are unable to fulfil contractual obligations because of the fuel crisis.
Robert Swift, head of farms and estate development at Wilsons Solicitors, last week said English law gives no general protection against force majeure unless there is a clause to cover it.
He argued that, with no significant civil disturbances since the miners’ strikes in the 1970s and 1980s, many firms could have become complacent, using badly drawn-up clauses or omitting them.
As an example, Swift pointed to the fact that, if a clause giving a list of force majeure events does not include the phrase “and any other causes”, the petrol dispute, which was generally peaceful, may not be covered.
“Is a fuel shortage the result of war, civil commotion, lockout, strike or act of God?” asked Swift. Given that a tanker driver could probably have safely crossed the picket line, Swift said businesses could need asweep-up clause to fight claims.
Even if such a clause exists, Swift said the burden of proof is on the person seeking to be excused an obligation. They will also be expected to show that they had taken all measures to avoid or lessen the problem.
He also warned that such clauses normally lay down strict procedures which must be observed if they are to be successfully upheld.
However, where a supplier has less stocks than he has orders, Swift said suppliers would be free to allocate them in any reasonable way. But any clause would be probably disallowed if a contract was broken to take advantage of higher prices caused by shortages.
