When can you invoke force majeure in England and Wales?

Most commercial contracts include a force majeure clause. Under English law, the term is simply a label for a contractual provision designed to address unexpected, disruptive events.

Common examples include natural disasters, wars, pandemics and government-imposed restrictions. However, simply pointing to an unexpected event isn’t enough. The law sets a high bar for any party wishing to rely on force majeure, and failing to meet even one of the requirements can mean the clause offers no protection at all.

This article sets out, in practical terms, the key steps a contracting party must work through before invoking a force majeure clause.

Step one: read the clause carefully

Courts interpret force majeure clauses strictly, by reference to the precise wording the parties agreed.

You must show that the event fits the clause’s trigger language and meets the required contractual threshold. For example:

• ‘Prevented’ – performance was legally or physically impossible (not merely difficult, inconvenient or unprofitable)
• ‘Hindered’ – performance became substantially more difficult, even if not impossible.

It’s also crucial to follow the notification requirements for a force majeure event.

Step two: prove the event falls within the clause

The burden of proof rests with the party seeking to rely on force majeure. This means gathering evidence early. You should document the event itself, its timing and its direct impact on your ability to perform.

Step three: establish that the event caused your non-performance

The force majeure event must be the real reason you couldn’t perform your contractual obligations. If there were other, non-force majeure reasons for your non-performance, you may not be able to rely on the clause.

You must also show that you were willing and able to perform your obligations in the absence of such event.

In practice, you should examine all the reasons why performance has failed. If any significant cause falls outside the scope of the clause, your reliance on force majeure is at risk.

Step four: take reasonable steps to avoid or reduce the impact

A force majeure clause usually requires the defaulting party to show that it used reasonable endeavours to mitigate the effects of the event. Even where this isn’t expressly stated, it may be implied. What’s considered reasonable will depend on the circumstances.

If you could reasonably have avoided the failure to perform, the true cause of failure isn’t the force majeure event itself but the inadequate response to it. However, you’re not obliged to accept a different form of performance (for example, where you’re asked to perform in a way that’s outside the contract), unless you have specifically agreed to do so.

Step five: assess the commercial impact

Invoking force majeure may trigger other counterparty rights, such as termination following prolonged non-performance or the suspension of exclusivity or supply commitments. The short-term benefit of force majeure may be outweighed by long-term contractual or commercial risks.

Failing at any one of these stages can be fatal to a force majeure claim. If a force majeure event may affect your contractual obligations, it’s essential to take legal advice early, document the situation carefully and act proactively to mitigate the impact.