On 15 October 2013, Lord Mance delivered the judgment of the Privy Council in General Construction Limited v Chue Wing UKPC 30.
This was an appeal from the Court of Civil Appeal of Mauritius and, importantly so far as that jurisdiction and similar jurisdictions influenced by French law are concerned, established the general principles to be applied in cases of force majeure. The Privy Council concluded that, while French law has traditionally required proof of three separate but cumulative elements in relation to force majeure of exteriority (étranger a la chose), unforeseeability (imprévisibilité) and irresistibility (irresistibilité), the correct approach and that which was in accordance with more modern doctrine was to treat irresistibility as the critical element, and unforeseeability simply as a relevant consideration in judging whether an event was or was not irresistible. Further, the Privy Council accepted the proposition that the concept of irresistibility did not require the party claiming force majeure to prove that the event or its consequences were impossible to be avoided but, rather, required that party to prove that the event or its consequences could not be avoided despite the taking of all reasonably and practicably possible measures to do so. This was a higher standard that that imposed by a duty to act reasonably in accordance with prudent practice but a lower standard than that imposed by a requirement to take every conceivable precaution.
The appellant was represented by Gavin Kealey Q.C and Julia Dias Q.C of 7 King’s Bench Walk and by Eric Ribot S.C of the Mauritian Bar.
To view the judgment click here.