What Does Convrgnt Value Engineering LLC v Kennedys Dubai LLP Mean for Irish Law?

In a recent decision in the High Court of England and Wales, the Court provided a useful insight into the consideration of and application of unfair contractual terms within professional contracts for services. The case involved judicial consideration as to the choice of law and jurisdiction application to a contract read against the Unfair Contractual Terms Act 1977, being England and Wales specific legislation. Whilst not strictly asked to determine the application and effectiveness of a liability cap in a contract for legal professional services, the Court nonetheless saw fit to do just that.

Whilst this decision is not directly applicable in Ireland, it is instructive and of persuasive authority and should certainly be considered when a liability cap is inserted into a contract in Ireland as to how the Irish courts might assess such provisions.

• Key Takeaway: Although Irish law permits solicitors to limit liability by contract, Convrgnt highlights the importance of ensuring that liability caps are properly incorporated, proportionate to the underlying transaction and aligned with available professional indemnity insurance.

What Does Convrgnt Value Engineering LLC v Kennedys Dubai LLP Mean for Irish Law?

The recent English High Court decision in Convrgnt Value Engineering LLC v Kennedys Dubai LLP [2026] EWHC 1754 (Ch)[1] provides a timely reminder that contractual liability caps in professional retainers cannot appropriately be considered in isolation from the transaction to which they relate, the risks assumed by the professional and the insurance available to meet those risks.

The decision is particularly striking because of the cap in question. Kennedys Dubai's liability was contractually limited to £3 million, a figure which, on its face, would appear substantial. The Court concluded that the cap would have been unreasonable under the English Unfair Contract Terms Act 1977 ("UCTA"), had UCTA applied[2]. The principal factors were the value of the underlying claim, the level of professional indemnity insurance available to the firm, the resources available to it and the absence of a satisfactory explanation as to why the cap had been fixed at £3 million.

From an Irish perspective, we have no equivalent general statutory reasonableness regime governing commercial limitation clauses. The Irish legislature has expressly permitted solicitors to limit their liability by contract, subject to a statutory minimum linked to professional indemnity insurance. The Law Society currently identifies that minimum level of cover as €1.5 million for every claim. However, in practice, if an Irish law firm is engaged in a high value transaction worth significantly over €1.5 million, there would arguably be an onus on an Irish law firm to ensure that any terms of engagement containing a €1.5 million cap on liability should be properly brought to the attention of the client and it would be appropriate to have the client sign the terms of engagement to show agreement to same having been afforded a reasonable opportunity to review same.

It would be recommended that any such Irish law firm engaged in such a high value transaction would have excess level professional indemnity insurance cover relative to the level of risk inherent within the transaction and many sophisticated commercial clients might well refuse to sign terms of engagement containing such a restrictive cap on liability as it would expose them to an excessive level of risk and would constitute poor corporate governance on the part of that company.

The significance of Convrgnt for Ireland therefore lies not in the direct transplantation of English UCTA principles, but in the broader questions it raises about how liability caps should be negotiated, drafted and aligned with the commercial and insurance realities of professional engagements. While the Consumer Rights Act 2022[3] applies specifically to consumer contracts and does not govern the allocation of risk between commercial parties, it provides a useful example of the Irish legislative emphasis on transparency and fairness in contractual terms.

The Act requires terms in consumer contracts to be fair, having regard to the nature of the contract and the circumstances in which it was agreed[4]. Although those statutory protections do not extend to B2B arrangements, the underlying considerations of clarity, proportionality and the substantive allocation of risk may nevertheless be relevant when assessing how a liability cap should operate. In that context, Convrgnt provides a useful reminder that a liability cap should not be considered in isolation but should reflect the value and nature of the transaction, the scope of the professional's retainer, the risks assumed by each party and the extent of available professional indemnity insurance.

What Happened in the Convrgnt Case?

The underlying dispute arose from a professional retainer between Convrgnt Value Engineering LLC ("CVE"), a Dubai-based construction company and Kennedys Dubai LLP. Kennedys Dubai was retained in connection with substantial proceedings arising from a major construction project. The retainer contained a broad limitation clause providing that Kennedys Dubai's aggregate liability for loss or damage arising from or connected with the services provided would be limited to £3 million. The clause extended to liability in contract, tort, statute and otherwise and expressly included negligence.

Following the underlying proceedings, CVE recovered AED 22.68 million together with interest and the return of a performance bond. CVE nevertheless alleged that further sums, exceeding £15.8 million, ought to have been recovered and brought claims against Kennedys Dubai arising from the conduct of the litigation. Kennedys Dubai denied liability but relied upon the contractual cap. The High Court was asked to determine several preliminary issues. One was whether the £3 million cap satisfied the statutory requirement of reasonableness under UCTA.

The Court ultimately held that UCTA did not apply because the retainer was manifestly more closely connected with Dubai and the UAE than England and Wales. Caroline Shea KC, sitting as a deputy High Court Judge, went on to consider the reasonableness question on the assumption that UCTA did apply[5]. That analysis is relevant to Irish practitioners in assessing why the £3 million cap was considered unreasonable.

Firstly, the value of the underlying claim was considered. The Court assessed the amount which CVE could reasonably have been expected to recover when the retainer was entered into and concluded that the expected recovery was comfortably in excess of £3 million. The cap was therefore materially below the loss which could reasonably have been contemplated if the professional services were performed negligently.

Secondly, Kennedys Dubai had professional indemnity insurance of approximately £30 million, ten times the contractual cap. The Court accepted that the existence of insurance could not determine whether a limitation clause was reasonable. The disparity between £30 million available insurance and a £3 million contractual cap was regarded as significant.

Thirdly, the Court considered the resources available to Kennedys Dubai and its relationship with its parent entity. These factors supported the conclusion that the firm had the financial capacity to meet a substantially greater liability.

Finally, the Court considered how the cap had come into existence. Although CVE was a commercial entity, the cap had not been negotiated. It appeared in the firm's standard terms and had not been specifically drawn to CVE's attention. By the time the terms were provided, significant aspects of the engagement had already been agreed and work had commenced. The Court concluded that CVE had not consciously consented to the limitation.

What Is the Position Under Irish Law?

The English analysis cannot be simply transferred into Irish law. The starting point in Ireland is freedom of contract. Many commercial parties are generally entitled to determine how contractual risks should be allocated between them. Irish law does not contain an equivalent to UCTA under which a court undertakes a general statutory assessment of whether a negotiated commercial limitation clause is "reasonable".

There is an important statutory regime applicable to solicitors. Section 44 of the Civil Law (Miscellaneous Provisions) Act 2008 amended the Solicitors (Amendment) Act 1994 to permit a solicitor to limit liability to a client by contract[6]. The amount of the limitation must be specified or referred to in the contract[7] and cannot be less than the minimum level of professional indemnity insurance required under the applicable legislation and regulations. The Law Society currently identifies that minimum as €1.5 million[8].

The Irish legislature has expressly recognised that contractual limitation of a solicitor's liability is permissible. Accordingly, an Irish court is not likely to approach a €3 million cap by asking the same question as the English Court in Convrgnt, namely whether the figure satisfies a general statutory test of reasonableness. Instead, the court is concerned with more conventional contractual questions, including whether the limitation formed part of the agreement, how the clause should properly be interpreted, whether it covers the particular cause of action relied upon and whether there are other legal grounds upon which its operation may be challenged. The €1.5 million figure therefore represents the minimum level of professional indemnity insurance cover which informs the statutory floor for a solicitor's contractual limitation. There is no general rule requiring an Irish solicitor acting on a substantial commercial transaction to limit liability to €1.5 million.

Why Does Professional Indemnity Insurance Matter?

In Convrgnt, the firm's £30 million PII cover was a factor in the Court's reasoning. The Court noted that the firm had insurance capable of responding to losses materially greater than the £3 million cap and regarded the disparity between the two figures as significant. A liability cap which exceeds the firm's available insurance may leave the firm exposed to uninsured liability.

Conversely, a cap substantially below the available insurance may lead a client to ask why the professional is unwilling to assume a greater proportion of the risk. For particularly high value cases, the parties may also consider whether top-up insurance should be obtained. This may allow a higher contractual cap to be agreed without exposing the professional to an unacceptable level of uninsured risk.

How Important Is Incorporation of a Liability Cap?

Convrgnt also provides an important lesson concerning incorporation. The £3 million cap appeared in standard terms of business. CVE was a sophisticated commercial entity and had access to legal advice. However, the Court attached limited weight to that because the clause had not been negotiated or specifically drawn to CVE's attention. The recent Supreme Court decision concerning Noreside Construction Ltd v Irish Asphalt Ltd [2014] is instructive in this regard. The Court held that a limitation clause contained in terms which had not been properly provided or incorporated did not become part of the parties' contracts merely because delivery dockets[9] referred to terms being "available on request".

The fact that the dealings had occurred repeatedly did not cure the failure to establish incorporation. A solicitor should not assume that a liability cap contained somewhere in standard terms will necessarily be effective simply because those terms exist. The retainer should identify the applicable terms clearly. The client should be given access to them before the contract is concluded[10]. Where the limitation is commercially significant, it should be expressly identified during the engagement process.

How Should Liability Caps Be Drafted?

The clause in Convrgnt was drafted broadly and expressly extended to liability in contract, tort and statute, including negligence. The Court had to consider whether the language of the clause extended to claims framed as failure of consideration and restitution[11]. The Court approached this as a question of contractual construction, applying ordinary principles of interpretation and considering the wording in its documentary, factual and commercial context.

For Irish practitioners, this highlights the importance of drafting the cap by reference to the causes of action and liabilities which the parties intend it to cover. If the intention is to limit liability arising from negligence, breach of contract, breach of statutory duty and other claims arising from the professional services, that should be expressed clearly. The drafting should also address whether the cap applies in aggregate to the retainer or separately to each matter or claim. Ambiguity at the drafting stage is likely to incur uncertainty at the point when the limitation matters most: after a professional negligence claim has arisen.

What Lessons Does the Case Provide for Terms of Engagement?

A further feature of Convrgnt was CVE's allegation that it had been misled about the terms of the engagement[12]. CVE argued that representations made in correspondence caused it to review only part of the terms of business and that, had it known about the liability cap, it would not have agreed to it. The Court ultimately rejected the claim because the necessary reliance had not been established. Although the claim failed, the issue illustrates a wider risk. A professional firm's standard terms do not operate in isolation from the representations made during the engagement process.

If a solicitor describes the terms as routine, non-contentious or otherwise indicates that there is nothing material requiring particular attention, that correspondence may subsequently become relevant if the client alleges that a limitation clause was not properly understood. The safest approach is therefore transparency. If a liability cap is material to the professional's willingness to accept the engagement, it should be expressly identified and, where appropriate, negotiated as part of the retainer.

Does the Decision Affect Injunctive Relief Applications?

The title of this discussion also raises the question of injunctive relief. Convrgnt was not an interlocutory injunction case. The judgment does not establish any principle that an injunction should or should not be granted because a contractual liability cap exists. The Irish courts approach interlocutory injunctions through the established framework concerning whether there is a fair issue to be tried, the adequacy of damages and the balance of convenience or balance of justice. The adequacy of damages is particularly important in commercial litigation. The High Court has recently reiterated that courts should be robustly sceptical of assertions in commercial contractual cases that damages are inadequate, while recognising that difficulty in assessing damages can nevertheless be relevant.

A liability cap could therefore become relevant to the practical assessment of whether damages constitute an adequate remedy. If a claimant's recoverable loss is contractually restricted to a particular sum, that may affect the consequences of refusing an injunction. Equally, where the validity or interpretation of the cap is itself seriously disputed, the court may be cautious about determining a complex contractual issue finally at an interlocutory stage. The existence of a liability cap will not therefore automatically determine the outcome of an injunction application. Rather, it may form part of the factual and commercial context in which the court assesses the adequacy of damages and the balance of justice.

What Are the Key Takeaways for Irish Practitioners?

Convrgnt Value Engineering LLC v Kennedys Dubai LLP is a useful case for Irish practitioners because it highlights the limits of treating liability caps as boilerplate. The English Court's finding that a £3 million cap would have been unreasonable was driven by the particular circumstances of the potential value of the underlying claim, the firm's £30 million PII cover, the resources available to the firm and the absence of any meaningful negotiation or explanation for the £3 million figure. The Irish position is materially different. Irish legislation expressly permits solicitors to limit liability by contract, subject to the statutory minimum linked to professional indemnity insurance.

The current minimum level of cover is €1.5 million. A liability cap should be approached as part of the substantive negotiation of the retainer and considered alongside the value of the transaction, the professional's exposure, the client's expectations and the available insurance. For high-value commercial work, particularly in the construction, infrastructure, property and corporate sectors, this is likely to become increasingly important. As the value and complexity of professional engagements increases, so too does the need for a transparent and carefully considered allocation of professional risk. The enduring lesson from Convrgnt is therefore not that a particular cap is reasonable or unreasonable; rather, the amount of any such cap should have a proper rationale underpinning it.

Authors:

• David Curran, Partner.
• Ellen Frahill, Legal Intern.

Key Contacts:

• Harry Fehily, Managing Partner.
• Michael Murphy, Partner and Head of Financial Lines.
• David Curran, Partner.

[1]Convrgnt Value Engineering LLC v Kennedys Dubai LLP [2026] EWHC 1754 (Ch), judgment of Deputy Master Arkush.

[2]Ibid., at [6]–[7]. The preliminary issues included whether s 27 of the Unfair Contract Terms Act 1977 disapplied

[3]Consumer Rights Act 2022, Part 6, which concerns unfair terms in consumer contracts. See ss 127–137.

[4]Ibid., , s 130(1)–(3).

[5]Ibid., at [87]–[104]. The Court considered the value of the underlying claim, the circumstances in which the cap was agreed, the resources available to Kennedys Dubai and the firm's PII cover.

[6]Civil Law (Miscellaneous Provisions) Act 2008, s 44, inserting s 26A into the Solicitors (Amendment) Act 1994. Section 26A permits a solicitor and client to agree a contractual limitation of civil liability, subject to the statutory minimum linked to professional indemnity insurance.

[7]Law Society of Ireland, “Limitation of a Solicitor's Liability”, Practice Note. The Law Society confirms that the current minimum level of PII cover is €1.5 million and that a contractual limitation cannot be below the applicable minimum level of insurance cover. (Law Society of Ireland)

[8]Ibid., Professional Indemnity Insurance Committee, confirming that all solicitor firms in private practice must maintain PII and that the current minimum level is €1.5 million for each and every claim. (Law Society of Ireland)

[9]id., The Supreme Court held that a reference on delivery dockets to terms and conditions being “available on request” was insufficient to incorporate those terms, and that there was insufficient evidence of a relevant custom or practice.

[10]See also James Elliott Construction Ltd v Irish Asphalt Ltd [2014] IESC 74, concerning the incorporation of contractual terms and the effect of terms relied upon by a party after the making of the contract.

[11]Convrgnt Value Engineering LLC v Kennedys Dubai LLP [2026] EWHC 1754 (Ch), at [104]–[107]. The Court considered whether the limitation clause extended to claims framed as failure of consideration and restitution and applied ordinary contractual construction principles.

[12]Ibid., at [5]–[6]. CVE alleged that statements made during the engagement process caused it to review only part of the terms of business and that, had it known of the liability cap, it would not have agreed to it.