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Resolving a dispute about the breach of a contractual warranty or indemnity   

7th February 2023 by Brendan Herbert

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Warranties and indemnities are routinely included in commercial agreements. Their aim is to provide a right of redress where representations or contract-critical information has been provided by one party to another, and this turns out to be inaccurate or wrong and results in financial loss.

Disputes about warranties and indemnities arise frequently and are particularly common in the context of business sales, finance and construction contracts, software development agreements, joint ventures and also higher value or complex sale of goods or supply of services contracts.

Reaching an agreement with your opponent about how a dispute might sensibly be resolved can be tough, whether you are the one claiming a breach has occurred or the one trying to fend off a potential claim. However, as Brendan Herbert, head of Laceys Dispute Resolution team explains: ‘You will stand a much better chance of being able to sort things out swiftly and amicably, and in a way that preserves your commercial relationship, if you seek advice from a solicitor as soon as you become aware that grounds for calling in a warranty or indemnity may exist, or as soon as a disagreement arises about the consequences of an admitted breach’.

Focus of the dispute

Given the fundamental importance of warranties and indemnities when it comes to allocating risk in commercial deals, it will usually be the case that where a dispute arises it will centre on one of four things. The first is whether a breach of the relevant provision has occurred, the second is whether it has caused the losses that are being claimed (where this is a prerequisite), the third is the extent to which those losses can be recouped, and the fourth is the extent to which liability for those losses may be restricted by a related exclusion or limitation of liability clause.

Assessing where you stand in relation to the dispute will necessitate careful consideration of not only the relevant warranty or indemnity itself, but also the wider contract in which it is contained and the circumstances that are alleged to have led to the warranty or indemnity being breached.

By seeking advice from a solicitor, you can gain valuable insight at an early stage as to how the terms of a warranty or indemnity provision are likely to be interpreted, what a potential violation may mean for you in a best- and worst-case scenario, and whether there may be other potential causes of action that need to be considered, like a possible claim for misrepresentation.

By arming yourself with this information, you will be better placed to make informed decisions about how you want to proceed in relation to the dispute and to decide on the parameters that you want to set when it comes to possible future settlement negotiations.

Warranty or indemnity?

Before looking at potential dispute resolution options, it is important to be clear about what warranties and indemnities are designed to achieve and the rights of recourse that they confer.

Warranties – A warranty is a contractual statement of fact that is designed to give assurance to a party about a particular aspect of the deal that has been struck. For example, in a business acquisition, a series of warranties may be given by the seller to the buyer to provide assurance about the profitability of the business, ownership of assets and the absence of legal disputes (other than those disclosed).

Where the terms of a warranty are breached, it will usually be possible to claim compensation for any harm caused – subject to that harm being a natural consequence of the breach, or one that can reasonably be said to have been in the contemplation of the parties as a possible outcome, and also subject to the affected party having done all they reasonably can to mitigate their losses.

Indemnities – An indemnity is a contractual promise that, if a certain event occurs, then the party giving the indemnity will compensate the other party for their consequent losses. For example, in a bespoke software contract, an indemnity may be given by the software developer to the end client to cover the risks associated with a threatened, but legally weak, claim of intellectual property infringement, which may have been mooted by a third party who alleges that the developer has used components that are covered by their intellectual property, and which are not properly licensed.  

Where the terms of an indemnity are breached, then a claim for compensation will again usually be possible and generally without the claiming party being under a duty to take mitigating steps.

Dispute resolution options

More often than not, the mechanism by which a warranty or indemnity claim must be resolved will be stipulated in the contract itself under a pre-agreed dispute resolution clause. Where this is the case, then it will normally be necessary for you to follow the procedure that has been prescribed.

In all other cases, the approach to dispute resolution that we advocate is an incremental one, which begins with negotiation and then moves on to other ‘non-court’ based options, such as:

• mediation, where the involvement of an experienced intermediatory may help you and your opponent to explore and hopefully agree on mutually acceptable terms for compromise;
• early neutral evaluation, where an independent legal expert (typically a barrister or a retired judge) can be asked to give you and your opponent an assessment of the merits of your respective cases, and which can then be used as a basis for further negotiation;
• expert determination, where a professional advisor can be asked to make a binding decision on a technical point of importance to your dispute – like the amount by which you can fairly be said to have overpaid for the shares or assets of a business that you have acquired, where it transpires that the financial information provided by the seller was incorrect; or
• arbitration, where an independent expert in the subject matter of your dispute can be appointed to make a relatively quick, confidential and legally binding decision on whether a warranty or indemnity claim can indeed be made and, if so, the appropriate compensation.

The instigation of proceedings at court should always be considered to be a step of last resort, although where proceedings are justified then they should of course be issued promptly.

How we can help

Our dispute resolution lawyers specialise in supporting businesses to achieve fast, effective and cost-efficient solutions to contractual disagreements. To find out more, please contact Brendan Herbert on 01202 377810 or via email at b.herbert@laceyssolicitors.co.uk

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.