What “Notwithstanding The Foregoing” Means In UK Contracts

If you’ve read a contract and stumbled over the phrase “notwithstanding the foregoing”, you’re not alone. It’s one of those legal phrases that tends to raise eyebrows - and occasionally, risks.

For small businesses, how this phrase is used can quietly change the meaning of a deal, shift risk onto you, or undo protections you thought you had. The good news? With a clear understanding and some practical drafting tips, you can keep your contracts simple, enforceable and aligned with how you actually want to trade.

In this guide, we’ll unpack what “notwithstanding the foregoing” really does in UK contracts, when it’s used, the common pitfalls, and better ways to draft your agreements so you’re protected from day one.

What Does “Notwithstanding The Foregoing” Mean?

In plain English, “notwithstanding the foregoing” means “despite what we just said above”. It’s a way to create an exception that overrides previous wording in the same clause or section. Think of it as a priority tool. If there’s any conflict between the earlier text and the exception, the “notwithstanding” sentence wins.

For example: “The Supplier will cap liability at £10,000. Notwithstanding the foregoing, the Supplier’s liability for wilful misconduct is unlimited.” The second sentence carves out a specific scenario where the cap does not apply.

Used carefully, it can be a useful drafting device. Used loosely, it can make the clause (or even the entire contract) confusing and open to argument.

It’s worth noting that courts in England and Wales generally try to read contracts as a whole and give each part a sensible meaning. If a “notwithstanding” sentence creates ambiguity, the court may rely on standard interpretation rules - and in some cases, the contra proferentem rule - to resolve uncertainty against the party who drafted the wording.

Where You’ll See It In UK Business Contracts

“Notwithstanding the foregoing” appears in many commercial agreements. You’ll most commonly find it where parties want to:

• Create exceptions to a cap or exclusion in a limitation of liability clause
• State that one section takes priority over another (for example, data protection vs general confidentiality)
• Handle order of precedence between documents (e.g. the Schedule vs the main terms)
• Carve out specific obligations from a general rule (like payment terms or IP ownership)

These are legitimate uses - but they can also be where risk creeps in. If the exception is too broad, or the language fights with what came before, you can end up with a contract that’s difficult to operate day to day. In particular, vague “notwithstanding” sentences inside liability, indemnity, IP, and price variation clauses can change your risk profile more than you intended.

If you’re comparing drafting options, it’s helpful to understand what notwithstanding clauses actually do and how they interact with the rest of the contract.

Key Risks For Small Businesses

Let’s look at the most common issues we see with “notwithstanding the foregoing”.

1) Hidden Priority Shifts

One short sentence can undo carefully negotiated positions earlier in the clause. For example, you might agree a liability cap - but a later “notwithstanding” carve-out for “any breach” effectively removes the cap for almost everything.

Practical tip: If you see “notwithstanding the foregoing” near a key risk area (liability, indemnities, IP), read it as “despite everything above, this wins”. Ask yourself whether you’re comfortable with that outcome.

2) Ambiguity And Conflicts

Stacking exceptions can make the contract hard to interpret. If two “notwithstanding” sentences point in different directions, you can create an internal conflict and invite a dispute.

UK courts prefer clear drafting. Where ambiguity remains, interpretive tools (including the contra proferentem rule) may cut against the party who supplied the wording. If you’re the party with the paper, unclear “notwithstanding” clauses can backfire.

3) Unfair Terms Risk (Particularly In B2C)

If you trade with consumers, overreaching exceptions that try to sidestep statutory rights may be unenforceable under the Consumer Rights Act 2015. Even in B2B deals, the Unfair Contract Terms Act 1977 restricts exclusions and limitations of liability. A “notwithstanding” sentence won’t rescue a clause that’s unreasonable or unlawful.

Keep the substance compliant first; use drafting techniques second.

4) Overuse And Boilerplate

Some templates scatter “notwithstanding” throughout as a shortcut instead of structuring the clause properly. The result is a contract that’s harder to navigate. That increases negotiation time, raises the chance of mistakes, and makes it more likely someone on your team misapplies the terms in practice.

5) Onerous Terms Not Flagged

If you rely on standard terms, be careful about burying harsh exceptions. A court may give weight to how a term was presented and whether it was reasonably brought to the other party’s attention. Building in unusually harsh “notwithstanding” carve-outs in dense text can be risky - and a red flag commercially. It’s often better to structure the clause clearly and surface any unusual risk, rather than hide it in one sentence. For more on this, see the discussion of onerous contract terms.

Better Ways To Draft Than “Notwithstanding The Foregoing”

You don’t have to avoid the phrase entirely - but you can make life easier by drafting with clarity first. Here are practical alternatives.

Use A Clear Order Of Precedence

Instead of repeating “notwithstanding” across the contract, include a short “Interpretation and Priority” clause that states which document or section controls in the event of conflict. For example:

• “If there is any conflict between these Terms and a Statement of Work, the Statement of Work prevails.”
• “If there is any inconsistency between the main body of this Agreement and a Schedule, the main body prevails.”

This keeps priority logic in one place and reduces exceptions sprinkled elsewhere.

Draft Exceptions Directly In The Clause

Write the rule and its exceptions in the same sentence or with labelled subclauses. For example, for a liability clause:

• “The Supplier’s aggregate liability is capped at £100,000, except that the cap does not apply to: (a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; or (c) wilful misconduct.”

No “notwithstanding” needed - and it’s immediately obvious what’s in or out.

Separate Topics Into Subheadings

Break long clauses into subclauses with heading labels (e.g. “Confidentiality”, “Data Protection”, “IP Ownership”) so there’s less chance of accidental conflict. If a specific topic must trump others, say so once in the relevant section.

Use Plain English Signals

Swap “notwithstanding the foregoing” for clearer signposts like “despite the above” or “even if the previous clause states otherwise”, but make sure you only use them where strictly needed. Simpler wording is easier for your team (and counterparties) to apply in real life.

Keep The Business Outcome Front And Centre

If a “notwithstanding” carve-out is just fixing clashing drafting, rework the clause structure. If it’s expressing a commercial exception you genuinely need (e.g. unlimited liability for IP infringement), say it explicitly. Clear, business-led drafting reduces friction and helps you close deals faster.

How To Fix Or Negotiate A Problem Clause

Spot a risky “notwithstanding the foregoing” clause in a draft? Here’s a simple approach to tidy it up or negotiate a fairer position.

1) Identify What It Overrides

Ask: which sentence(s) does this exception trump? If you can’t tell quickly, that’s a sign to restructure. Move the exception next to the rule it modifies or rewrite the rule to build the exception in.

2) Narrow The Exception

Trim the scope. Replace broad phrases like “any breach” with the specific conduct or loss types you actually mean. If you’re dealing with liability, use a structured limitation of liability clause with well-defined carve-outs.

3) Add Or Confirm A Priority Clause

If the contract contains multiple documents (main terms, SOWs, schedules), include a simple order-of-precedence statement. This reduces the need for local “notwithstanding” fixes throughout.

4) Use A Clean Amendment Process

If you’ve already signed and need to tidy ambiguous wording, do it properly. Decide whether you need an addendum vs amendment, and follow a sensible process for amending contracts so the change is effective and the updated document is easy to read.

5) Get The Clause Redrafted

Where the stakes are high, it’s worth investing in bespoke wording. Poorly drafted exceptions can invite disputes or be ignored by a court if they clash with statute. If you need help, our team can support you with targeted clause drafting or full contract drafting so your agreements say exactly what you intend.

Practical Examples (Good Vs Risky)

Here are some quick scenarios to show how “notwithstanding the foregoing” can help - or hurt.

Example 1: Liability Caps With Sensible Carve-Outs

Risky: “The Supplier’s liability is capped at £50,000. Notwithstanding the foregoing, this cap will not apply to any breach of this Agreement.”

Why it’s a problem: The exception swallows the rule. If “any breach” is uncapped, the cap is meaningless.

Better: “The Supplier’s total aggregate liability is capped at £50,000, except that the cap does not apply to: (a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation.”

Example 2: IP Ownership And Licence Back

Risky: “All Project IP vests in the Client. Notwithstanding the foregoing, the Supplier owns all materials developed in connection with the Services.”

Why it’s a problem: The exception directly contradicts the vesting sentence without clarifying categories of IP.

Better: “All Project IP (being outputs created specifically for the Client under a Statement of Work) vests in the Client on payment in full. The Supplier retains ownership of its Background IP and grants the Client a perpetual, worldwide licence to use it solely as incorporated in the Project IP.”

Example 3: Price Variation

Risky: “Fees are fixed for 12 months. Notwithstanding the foregoing, the Supplier may change prices at any time upon notice.”

Why it’s a problem: The second sentence defeats the first and can be challenged as unclear or unfair.

Better: “Fees are fixed for 12 months. After that period, the Supplier may change prices on at least 30 days’ written notice.”

Example 4: Order Of Precedence

Risky: “Notwithstanding the foregoing, the Schedule prevails over the Agreement, except for provisions relating to fees, liability or IP.”

Why it’s a problem: It’s hard to track what prevails and where. Ambiguity invites conflict.

Better: “If there is any inconsistency between these Terms and a Statement of Work, the Statement of Work prevails, except that clauses 6 (Fees), 10 (Liability) and 12 (Intellectual Property) in these Terms always prevail.”

Example 5: Data Protection Vs Confidentiality

Helpful: “The parties must keep Confidential Information secret. Despite this, if a party is required by law to disclose information, it may do so, provided it gives prompt notice (where lawful) and limits disclosure to what is required.”

Why it works: A narrow exception aligned with law is clearly signposted and doesn’t create a conflict elsewhere. If your agreement includes personal data processing, make sure all wording works alongside your data protection obligations and privacy documentation (for example, a public-facing Privacy Policy).

Compliance Reminders When Using Exceptions

Even with clean drafting, your clauses still need to be lawful and reasonable.

• Consumer law: If you sell to consumers, the Consumer Rights Act 2015 sets mandatory standards for fairness, quality and remedies. No drafting trick can exclude those rights.
• UCTA reasonableness: In B2B contracts, exclusions and limits of liability are subject to the Unfair Contract Terms Act 1977 reasonableness test. Be particularly careful with broad exclusions for negligence or strict caps that don’t match risk.
• Transparency: Onerous, unusual or surprising terms should be drafted clearly and surfaced properly. Courts can take into account how terms were presented.
• Consistency across documents: Make sure the main terms, schedules, and statements of work use the same definitions and don’t contradict each other. If you update one, consider whether you need a formal amendment using the right mechanism (e.g. an addendum vs amendment).

If you’re still unsure whether your wording strikes the right balance, a short review by a contracts lawyer can save you headaches later - especially around liability and IP, where small changes have outsized effects.

Negotiation Tips You Can Use Today

Here are quick, practical steps you can apply the next time “notwithstanding the foregoing” pops up in a draft.

• Ask for the business rationale: “What scenario is this exception trying to cover?” Then draft for that scenario only.
• Move the exception: Put it next to the rule it qualifies. Avoid cross-referencing earlier clauses when you can.
• Swap boilerplate for specifics: Replace generic “notwithstanding” with a specific sentence that states the intended outcome.
• Use lists: Where you need carve-outs (especially for liability), list them clearly rather than using a free-form exception.
• Check interactions: Read the clause without the exception, then with it. If the exception makes the original sentence meaningless, you’ve likely gone too far.
• Keep alternative remedies aligned: If a “notwithstanding” sentence is trying to preserve a right (e.g. injunctive relief), state it plainly: “The parties acknowledge that damages may be an inadequate remedy and each party may seek injunctive relief.”

When “Notwithstanding” Still Makes Sense

To be fair, sometimes “notwithstanding” is the neatest tool for a limited, high-priority exception. For example:

• “Notwithstanding clause 10, nothing in this Agreement limits a party’s liability for death or personal injury caused by its negligence.”
• “Notwithstanding any confidentiality obligations, a party may disclose information to its professional advisers who are bound by confidentiality obligations.”

These are narrow, well understood carve‑outs. If you use “notwithstanding” sparingly, with a clear purpose, you’ll likely be fine. Problems arise when the phrase tries to fix messy structure or mask a sweeping exception.

Key Takeaways

• “Notwithstanding the foregoing” is a priority tool - it makes an exception override earlier wording. Treat it as “this wins over what’s above”.
• Use it sparingly. Overuse creates ambiguity, negotiation friction and operational headaches for your team.
• Draft for clarity first. Build exceptions into the clause, use lists, and include a simple order-of-precedence clause rather than scattering exceptions.
• Be careful around high‑risk areas. Liability, indemnity and IP clauses deserve precise wording; consider bespoke clause drafting for these sections.
• Don’t rely on wording to sidestep the law. Consumer Rights Act 2015 and UCTA 1977 reasonableness rules still apply to exclusions and limitations.
• If you need to change existing wording, follow a clean process for amending contracts so your documents remain consistent and enforceable.
• When in doubt, simplify or seek help. Targeted support with contract drafting can prevent small wording choices from creating big risks.

If you’d like help reviewing or redrafting a clause (or you want a clean, plain‑English agreement that avoids these traps), you can reach us at 08081347754 or team@sprintlaw.co.uk for a free, no‑obligations chat.