What the phrase is meant to do
"Including but not limited to" and "including without limitation" are meant to make clear that a list is illustrative, not exhaustive - the named items are examples, and other things of the same general nature are also covered. The instinct is sound: you want the benefit of examples without accidentally closing the category.
The problem is that English law does not always give the phrase the open-ended effect drafters assume.
Why it can still be read narrowly: ejusdem generis
The difficulty is the ejusdem generis canon ("of the same kind"). Where specific examples are followed by general words, courts can read the general words as limited to things of the same type as the examples. A list that looks open can be pulled back to the category its examples imply, even with a catch-all attached.
Courts apply this where they think the list shows the parties' real intention to limit scope. The catch-all does not override that signal; it is read in light of it.
An illustration of the risk
A well-known illustration comes from a United States insurance case, Holy Angels Academy v Hartford Insurance Group, 127 Misc. 2d 1024, 487 N.Y.S.2d 1005 (Sup. Ct. 1985), where a policy excluded "earth movement including but not limited to earthquake, landslide, mudflow, earth sinking, earth rising, or shifting". When man-made construction caused earth movement, the court held the exclusion did not reach it - the listed examples were all natural geological events, so the catch-all was read as limited to events of that kind.
That case is not English authority, but it captures a risk English law shares through ejusdem generis: a string of same-type examples can quietly define the category, whatever the catch-all says.
How to draft so the scope holds
If you want certainty, be exhaustive: list the items and use means. If you want breadth, do not lean on the catch-all alone. Use genuinely expansive wording ("earthquake, landslide, or other earth movement, whether natural or man-made"), or state the principle first and then give examples ("any earth movement, including earthquake and construction-induced subsidence").
The aim is to make the breadth explicit in the category itself, rather than hoping a catch-all will rescue a list whose examples all point one way.
The interpretation-clause workaround
Some contracts add an interpretation provision stating that "including" means "including without limitation" and that the ejusdem generis rule does not apply. This is not foolproof, but it signals a clear intention against restrictive reading, and it is worth including where open-ended lists matter.
In review, treat long "including but not limited to" lists as a yellow flag: check whether the examples imply a narrower category than the drafter intended, and whether the scope you are relying on is actually secured.
Use at the desk
Practical checklist
- Do not rely on including but not limited to to keep a list open - courts can read it restrictively.
- If you want certainty, list the items and use means (exhaustive).
- If you want breadth, say so in the category itself ("or other [X], whether [A] or [B]"), not just in a catch-all.
- Consider an interpretation clause disapplying ejusdem generis where open lists matter.
- In review, check whether the listed examples imply a narrower category than intended.
This guide is informational only and is not legal advice. It does not replace advice from licensed counsel on the facts of a specific transaction.
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