Understanding whether the force may be with you

Successful Business Partners

‘May the force be with you’ is usually the concern of Jedi knights heading to battle in Star Wars, rather than something that company directors look for.  But for those companies looking to claim that the coronavirus pandemic has given rise to circumstances beyond their control in delivering on contracts, it is a ‘force’ of a different sort that is concentrating minds.

In one of the few cases to consider the impact of the pandemic on company contracts to date, the High Court has ruled that a force majeure event took place when a Drain Doctor franchisee needed to self-isolate due to the risk of Covid-19 on his vulnerable child.

A force majeure clause in a contract can excuse one or both parties from their obligations – without being liable for any failure to perform – if acts, events or circumstances occur which are beyond their control, such as a natural disaster or a state of war.

In the case of Dwyer (UK) Franchising Ltd v Fredbar Ltd & Bartlett, the franchise agreement contained a clause for suspension during any period that either party was prevented or hindered from complying with their obligations by any cause designated as force majeure by the franchisor.

When Fredbar asked to invoke the clause as work levels were reduced and he needed to self-isolate, Dwyer (UK) argued that plumbing services could still be provided during lockdown and a drop in demand was insufficient grounds for force majeure.  When the franchisee terminated the agreement, arguing Dwyer (UK) had failed to meet its obligations, the company retaliated by initiating legal action, claiming damages.

In assessing the case, the High Court drew on what is known as the Braganza duty, from the 2015 case of Braganaza v BP Shipping, which saw the Supreme Court rule that a unilateral power to call a force majeure event must be exercised ‘honestly, in good faith and genuinely’.

In this case, the judge ruled that Dwyer (UK) were in breach of the Braganza duty in refusing to agree force majeure, as they had failed to consider all the relevant factors.  These extended beyond the general situation regarding plumbing services during the pandemic and included the importance of family welfare and the franchisee’s need to isolate to protect his son, who was in a vulnerable category for Covid purposes.

“The ruling reflects the specific facts of this case and the wording of the force majeure clause.  But while the wording of Drain Doctor’s clause was not typical, it is an interesting outcome for anyone currently pursuing action on these grounds in relation to the pandemic.  However, each case will hang on individual circumstances and the wording of the particular contract concerned,” explained Emma ReynoldsCommercial & Corporate Paralegal at Hart Brown Solicitors.

Emma added: “The past year has taken us all into unchartered territory, demonstrating how the unexpected can, and does, happen. This is why it is so important to have well drafted contracts, as having clear terms in place can make all the difference.  And because the concept of force majeure is derived from civil law, and not fully recognised under English common law, it should always be fully and clearly defined in a contract.”

Dwyer (UK) Franchising Ltd v Fredbar Ltd & Bartlett [2021] EWHC 1218 (Ch).

a v BP Shipping Ltd [2015] UKSC 17; [2015] 1 WLR 1661

To discuss this, or a related matter with Emma, please email info@hartbrown.co.uk or call 01483 887766. 

* This is not legal advice; it is intended to provide information of general interest about current legal issues.


Emma Reynolds

Solicitor, Commercial Property

Emma-Rose qualified as a solicitor in September 2023, although she has been with Hart Brown since graduating with her first-class honours Bachelor of Law Degree...

Emma R

Solicitor, Commercial Property

Emma Reynolds

Emma-Rose qualified as a solicitor in September 2023, although she has been with Hart Brown since graduating with her first-class honours Bachelor of Law Degree in 2019. Emma-Rose completed her Master of Law in Professional Legal Practice and obtained a distinction whilst working full-time as a paralegal at Hart Brown.

Emma-Rose has trained in the Commercial and Corporate, Leasehold Enfranchisement, Residential Property and Commercial Property departments and is now working full-time as a solicitor in her chosen field, Commercial Property.

Emma–Rose advises clients in relation to the acquisition and disposal of commercial property, granting and taking new leases, lease renewals, assignments of existing leases, grants of easements and deeds of covenant.

Emma-Rose prides herself in providing a straightforward, efficient and pragmatic approach to her matters so that she can deliver the best possible level of service to her clients.

Some client testimonials:

“I would like to thank you Lewis and Emma for your help, support, and advice in this matter, it did seem a bit daunting at first but you made it easy and I really appreciate what you have done for me so thank you again”

“Emma was a breath of fresh air always nice to speak to very helpful in me understanding the process.”

“Thank you so much for putting this together and sending it on to me. I am really very thankful. I have been so impressed with the communication from your firm throughout this whole process and have found you to be so easy and friendly to work with. I would have no hesitations in using Hart Brown in the future and would highly recommend you to others.”

“I just wanted to say thanks so much for doing this so quickly and efficiently… this is a great help.”

“It was an absolute joy and a pleasure working with you, where it's a small world and so if there are other times of my requiring excellent Solicitors, then I shall of course contact you.”

“Our interaction with you throughout was professional and efficient and we particularly appreciated your responsiveness/keeping us informed as matters progressed.”

“A huge thank you to Debbie and Emma for their absolutely incredible service during our house purchase. They were fantastic from start to finish, very thorough, regularly updated us and were always available by phone and email and answered all of our questions. We felt very well looked after and would highly recommend them!”