Recently I wrote a series of post limitation of liability, which you can see here. The only thing is that those limitation provisions are only going to help protect you from potential claims from people with whom you have a written agreement containing appropriate wording.
So what if you are communicating with someone who isn’t a client and/or someone with whom you don’t have an agreement? What about someone who might see a letter or report you write? Or might attend a presentation you give. Or even reads your blogs.
Well, what you can do is include some form of Disclaimer wording making it clear what responsibility you accept for the report or whatever, to whom and how it is intended to be used.
The thing is a Disclaimer is a great “quick fix”. But will it work to protect you from claims? Well, not necessarily – it depends.
So what do I mean by a disclaimer? Well, I mean a notice on a document or a website etc which might say something along the following lines (tailored to the appropriate circumstances).
Here is an example:
This report was prepared by us for [Client] solely for its use and for the purpose specified in it. It should not be disclosed to any other party unless we have given our prior consent, except as required by law. No other party is entitled to rely on the advice contained in this report, and we do not accept any liability to any other party in respect of this report.
So what 3 things do you need to know about Disclaimers? As usual, I’m taking from a UK law perspective.
1. To be effective it has to be reasonable.
In the UK, at least, to be effective any exclusion or limitation of liability has to be reasonable as I discussed here.
So there are several factors to consider:
- If you are being paid (eg by a client) to give advice, it is going to be more difficult for you to restrict or exclude liability – as compared to someone you don’t have a relationship with (ie a third party).
- It may be reasonable to say you aren’t responsible for something. But if so make this clear. And explain why this is the case:
Eg: We will rely on the information you provide to us and will not carry out any independent verification.
(Mind you, if something was glaringly incorrect, if would be wise to question it rather than rely on this wording.)
- If you are only giving advice on one aspect of an arrangement, you should make it clear that other advice should be obtained eg on tax implications.
2. Do you have a particular obligation to the person reading the information – even if they aren’t a client?
Well, you might in specific circumstances.
Without getting into case law, in some circumstances you might be regarded as owing a “duty of care” to a third party if, for example, you know that they are likely to see and rely on what you have prepared.
In those circumstances, if the matter is high risk you might want to “flush out” the ambiguity and agree that the third party can rely on the report. This could be done eg in a reliance letter signed by both parties – which would allow you to have a limitation of liability provision direct with the “third party”.
3. Will it be seen by the people who need to know about it?
There are several issues here depending what the means of communication and the practicalities of the situation.
- If you include a disclaimer in a report or a presentation, you should include it on every page and, to the extent possible, do so in a way such that only part of it can be provided without the disclaimer wording. Easier said than done, I know – perhaps it could be included in a “watermark”.
- As far as possible, draw attention to the disclaimers or the place where it can be found. OK, not so easy online. Typically, it will be in website terms and conditions of use. These are usually accessed by a link – so, in fact, people may not look at them but at least they are there. Realistically it probably isn’t practical to have something separate on each page taking up space.
- Purely “verbal” disclaimers are always going to be difficult. People won’t remember you said it and there is the difficulty of evidence. Which is one reason to make sure it is included in any other documentation accompanying a presentation (eg hand-outs).
I hope that you found that useful. If you have any thoughts you would like to add, please do share them by commenting below.
@ shutterstock/robert mobley
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