misconduct on the other” (Armitage v Nurse). The language of the UK Credit Rating Agencies (Civil Liability) Regulations 2013 (SI 2013/1637), which implement an EU Regulation on the civil liability of credit rating agencies, is worth noting. The UK Regulations define gross negligence of a credit rating agency by reference to the recklessness of its senior management, i.e. “if they act without caring whether an infringement occurs”, which is a subjective test. Although the UK Regulations are narrow in their application, might the English courts somehow be influenced by the language of the Regulations when construing the expression “gross negligence”, perhaps when used in a document entered into after the coming into force of the UK Regulations? An interesting thought perhaps but not one that the English courts have had to consider. Once the meaning of an exclusion clause has been established, there is of course the separate question whether it will be effective as a matter of law, for example whether it will be subject to the Section 2(2) Unfair Contract Terms Act 1977 requirement of reasonableness.

That subsection (when applicable – there has been some debate whether the subsection catches a trustee’s duties) applies to clauses intended to exclude or restrict liability for negligence. For information on Bryan Cave’s European Corporate Trust Team for Disputes and Proceedings, click here. RELATED PRACTICES Corporate Trust Page 3 of 3 .