For producers to be able to rely on force majeure to suspend or terminate a contract, there has to be an express provision dealing with force majeure.
Force majeure will not be implied into contracts under English law, and so cannot be relied on where there is no express force majeure clause included.
Most Pact template agreements and collective agreements do address force majeure expressly (see the full list in the Pact Covid-19 Guidance here).
In general, the clauses are worded broadly using ‘without limitation’ wording (i.e. several possible causes of stoppage are listed but the list is expressly not definitive). In the absence of any wording specifically referring to a virus or pandemic, the most helpful wording for producers will be where production of the programme is prevented, interrupted or delayed by any cause outside the control of the Company or a similar wording.
If the clause contains a cause/event outside or beyond the control of the producer wording, the key will be to examine that wording in light of the government’s response to the virus. As this has changed and escalated almost daily, it may be necessary to continually reappraise the situation. A Government Order which has the effect of preventing filming will constitute an act of force majeure.
If that is the case, please see the individual contract/collective agreement for the required next steps, notice etc. These must be followed to the letter if the clause is to be relied upon.
Conrad Mewton Senior Business Affairs ExecutiveSee contact +
Please note: Government guidance is changing rapidly and whilst we are doing everything we can to keep our information up to date we advise you to look carefully at the date that it was posted/last updated. Please also keep checking your e-mails from Pact for the most up to date announcements and information.