‘10.2 The Supplier may terminate this Contract at any time for all or any Supply Premises if: … (d) the Customer passes a resolution for its winding up which shall include amalgamation, reconstruction, reorganisation, administration, dissolution, liquidation, merger or consolidation (other than a solvent amalgamation, reorganisation, merger or consolidation approved in advance by the Supplier) or a petition is presented for, or a court of competent jurisdiction makes an order for, its winding up for dissolution, or an administration order is made in relation to it or a receiver is appointed over, or an encumbrance takes possession of or sells, one or more of its assets or the Customer makes an arrangement or composition with its creditors generally or ceases to carry on business; …’
‘10.5 Where, in relation to any Supply Premises, this Contract is terminated by the Supplier pursuant to clause 10.2, the Customer shall within 10 days of the termination date pay to the Supplier the [sic.] 50 percent of the remaining value of this Contract to the Supplier in respect of the relevant Supply Premises (as determined by the Supplier acting reasonably) as notified by the Supplier.’
‘13.1 No delay or omission by either party in exercising any right, power or remedy under this Contract shall be construed as a waiver of such right, power or remedy and any single or partial exercise shall not prevent any other or further exercise of the same or the exercise of any other right, power or remedy.’
‘Notice of amalgamation between Notting Hill Housing Trust and Genesis Housing Association As you are a supplier to Genesis Housing Association I am writing about the contract(s) we have with you and the proposed merger. Genesis Housing Association Limited (Genesis) and Notting Hill Housing Trust (Trust) are proposing to merge. The merger will be completed through the amalgamation of Genesis and the Trust undersection 109 of the Co-operative and Community Benefit Societies Act 2014 (Amalgamation). The Amalgamation will create one new “combined” society which has a new legal identity which will be called Notting Hill Genesis (NHG). We have been progressing toward the Amalgamation for some time and are aiming to complete the Amalgamation around Easter. The effect of the Amalgamation is that all of our properties and other assets, including our Contract(s) with you, will automatically vest in NHG. Consequently, there is no novation or assignment of any Contract required. NHG will assume responsibility for the performance of our obligations from the date of completion of the Amalgamation. Our amalgamation date is planned for early April 2018; when completed you will be dealing with Notting Hill Genesis (NHG), a new legal entity. We will contact you again in April, once the amalgamation is complete, to tell you about our new address and other legal identifiers, such as our new VAT number. For the moment it continues to be “business as usual” with respect to invoicing, payment terms, receipt of payment and contact details. Please continue to send all communications to the current address and individual/department with whom you deal at the moment. You can find more information on our websites …, but please let me know if you have further questions or if you’d like to discuss in more detail how our plans might affect how we work with you. You can send any queries to me via … Yours sincerely, Paul Jameson’
‘OTHER BREACHES OF CONTRACT The amalgamation of Notting Hill Housing and Genesis Housing Association in April 2018 without approval in advance by our client entitles our client to terminate the Contract pursuant to clause 10.2(d). Giving our client notice of the amalgamation shortly beforehand does not amount to the seeking of approval. Accordingly, our client hereby gives notice pursuant to clause 10.4 that the Contract will terminate at 4pm on14 November 2018 . If NHGHA has not put in place a replacement supplier by this date, then clauses 10.9 and 2.3 shall apply, such that our client will continue supply under a deemed contract at the Deemed Tariff Rates as notified to you in our client's letter dated31 October 2018 . Further, NHGHA has been in persistent, long-standing and material breach of clause 6.3 of the Contract by failing to allow our client's representatives to have reasonable access to Metering (as defined). This is a matter which has been drawn to your attention by our client on a number of occasions and, we understand, is acknowledged by you. The denial of access to Metering amounts to a fundamental obstruction to our client's effective performance of the Contract. It means that our client cannot acquire accurate data for billing purposes nor exchange meters for smart meters to enable collation of accurate consumption data for estimating purposes. Our client has already given you notice to remedy this breach of the Contract within 10 days (by14 November 2018 ). We further consider that your client's clear breaches of clause 6.3 inevitably amount to breaches of clause 5.1. CONSEQUENCES OF TERMINATION In accordance with clause 10.5 of the Contract, upon a termination by our client pursuant to clause 10.2, NHGHA is obliged to pay our client 50% of the remaining value of the Contract within 10 days. Our client calculates the relevant sum to be£3,946,861.78 based on the annual consumption of the Supply Premises extrapolated from termination of the Contract on14 November 2018 until its intended End Date of30 September 2021 . Please pay this sum into our client's account provided on its invoices by24 November 2018 , failing which we anticipate instructions to commence further High Court proceedings for its recovery immediately thereafter without further notice to you…’
‘The purported termination of the Agreement by you, as set out in the letter from your solicitors, is wrongful and constitutes a repudiatory breach by you of the Agreement between us. By this letter we hereby give notice of our election to accept that repudiatory breach, which means that the Agreement comes to an immediate end. Our acceptance of your repudiatory breach entitles us to claim damages in respect of our losses arising from your breach. Our solicitors will correspond with your solicitors to set out the basis of our claim for these damages and to seek to agree a mechanism for a final reconciliation of the amount owed between the parties for electricity used (both before the termination of the Agreement and on the basis of the deemed contract that now arises). This reconciliation will take account of the credit balance which you hold in our name.’
‘66. Did URE waive by election its right under clause 10.2(d) to terminate the Contract? i) Was URE aware of its right to terminate and, if so, when? ii) Is it to be inferred that URE was advised and so aware of its right to terminate because it was in receipt of advice from Burges Salmon? iii) Did URE waive its right by continued performance? iv) Is URE to be deemed to have elected to continue with the Contract through lapse of time?’ i) Was URE aware of its right to terminate and, if so, when? ii) Is it to be inferred that URE was advised and so aware of its right to terminate because it was in receipt of advice from Burges Salmon? iii) Did URE waive its right by continued performance? iv) Is URE to be deemed to have elected to continue with the Contract through lapse of time?’
‘i) Where a party (A) becomes entitled to a terminate a contract, whether pursuant to a contractual right or a repudiatory breach by the other party or otherwise, it must elect whether to exercise that right or not; ii) In order to make that election, A must be aware both of the facts giving rise to the right to terminate and of the right itself; iii) A must actually make a decision. If it does not, the time may come when the law nonetheless deems an election to have been made; iv) If, with the requisite knowledge set out in ii) above, A acts in a manner which is consistent only with one or other of two inconsistent courses, it will be held to have elected accordingly; v) An election can be made by any words or conduct which communicates an intention to choose one or other course of action but, particularly where A has elected to abandon a right which it would otherwise possess, such election must be communicated in clear and unequivocal terms.’
‘47. As was recently observed by Lord Hamblen, giving the sole judgment of this court, in JTI Polska sp z oo v Jakubowski[2023] UKSC 19 ,[2023] 3 WLR 50 , at para 39: “Certainty and predictability are of particular importance in the context of English commercial law, all the more so given the frequent choice of English law as the governing law in international commercial transactions”. There have been many other authoritative statements to the same effect. For example, in Golden Strait Corpn v Nippon Yusen Kubishika Kaisha (The Golden Victory) [2007] 2 UKHL 12,[2007] 2 AC 353 , Lord Bingham of Cornhill said as follows at para 23: “The importance of certainty and predictability in commercial transactions has been a constant theme of English commercial law at any rate since the judgment of Lord Mansfield CJ in Vallejo v Wheeler (1774) 1 Cowp 143, 153, and has been strongly asserted in recent years in cases such as Scandinavian Trading Tanker Co AB v Flota Petrolera Ecuatoriana (The Scaptrade)[1983] QB 529 , 540–541,[1983] 2 AC 694 , 703–704; Homburg Houtimport BV v Agrosin Private Ltd (The Starsin)[2004] 1 AC 715 , 738; Jindal Iron and Steel Co Ltd v Islamic Solidarity Shipping Co Jordan Inc (The Jordan II)[2005] 1 WLR 1363 , 1370”.’ “The importance of certainty and predictability in commercial transactions has been a constant theme of English commercial law at any rate since the judgment of Lord Mansfield CJ in Vallejo v Wheeler (1774) 1 Cowp 143, 153, and has been strongly asserted in recent years in cases such as Scandinavian Trading Tanker Co AB v Flota Petrolera Ecuatoriana (The Scaptrade)[1983] QB 529 , 540–541,[1983] 2 AC 694 , 703–704; Homburg Houtimport BV v Agrosin Private Ltd (The Starsin)[2004] 1 AC 715 , 738; Jindal Iron and Steel Co Ltd v Islamic Solidarity Shipping Co Jordan Inc (The Jordan II)[2005] 1 WLR 1363 , 1370”.’
‘At all material times, URE was (or ought to have been) aware of its right to terminate under clause 10.2(d). This is because: (i) it was an express clause in the Contract to which URE was a party; …’
‘25. If the point is a pure point of law, and especially where the point of law goes to the jurisdiction of the court, an appeal court may permit it to be taken for the first time on appeal. But where the point, if successful, would require further findings of fact to be made it is a very rare case indeed in which an appeal court would permit the point to be taken. In addition before an appeal court permits a new point to be taken, it will require a cogent explanation of the omission to take the point below.’
‘15. The following legal principles apply where a party seeks to raise a new point on appeal which was not raised below. 16. First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court. 17. Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial (Mullarkey v Broad[2009] EWCA Civ 2 at [30] and [49]). 18. Third, even where the point might be considered a “pure point of law”, the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs. (R (on the application of Humphreys) v Parking and Traffic Appeals Service[2017] EWCA Civ 24 ; [2017] R.T.R. 22 at [29]).’
‘Election is to be contrasted with equitable estoppel, a principle associated with the leading case of Hughes v Metropolitan Railway Co (1877) 2 App Case 439. Equitable estoppel occurs where a person, having legal rights against another, unequivocally represents (by words or conduct) that he does not intend to enforce those legal rights; if in such circumstances the other party acts, or desist from acting, in reliance upon that representation, with the effect that it would be inequitable for the representor thereafter to enforce his legal rights inconsistently with his representation, he will to that extent be precluded from doing so. There is an important similarity between the two principles, election and equitable estoppel, in that each requires an unequivocal representation, perhaps because each may involve a loss, permanent or temporary, of the relevant party’s rights. But there are important differences as well. In the context of a contract, the principle of election applies when a state of affairs comes into existence in which one party becomes entitled to exercise a right, and has to choose whether to exercise the right or not. His election has generally to be an informed choice, made with knowledge of the facts giving rise to the right. His election once made his final; it is not dependent upon reliance on it by the other party. On the other hand, equitable estoppel requires an unequivocal representation by one party that he will not insist upon his legal rights against the other party, and such reliance by the representing as will render it inequitable for the representor to go back upon his representation. No question arises of any particular knowledge on the part of the representor, and the estoppel may be suspensory only. Furthermore, the representation itself is different in character in the two cases. The party making his election is communicating his choice whether or not to exercise a right which has become available to him. The party to equitable estoppel is representing that he will not in future enforces legal rights. His representation is therefore in the nature of a promise which, though unsupported by consideration, can have legal consequences; hence it is sometimes referred to as promissory estoppel.’
‘Is knowledge of the facts which give rise to the right enough? Or must there also be knowledge that they give rise to the right and hence to a right of choice?’
‘knowledge of the facts which give rise to the right to rescind is not enough to prevent the plaintiff from exercising that right, but he must also know that the law gives him that right yet choose with that knowledge not to exercise it.’
‘Now it may be that there are cases where it is proper to assume that a party to a contract, who has in the circumstances are right to disaffirm the contract, knows that he has such a right or at any rate to attribute such knowledge to him. Forfeiture clauses in leases may be cited as an example. Support for such a view may be found in the extract from the late Mr JS Ewart’s book entitled Waiver Distributed among the Departments Election, Estoppel, Contract, Release, at p.72 … In such cases, if the learned author’s view is correct, it would seem that the parties to a contract are to be deemed aware of the elections that the terms of their contract give them or at any rate are to be precluded from denying knowledge of them.’
‘Where there is in fact no intention to waive or abandon the right because there is no knowledge of it, will that intention be presumed from conduct? This raises, in my opinion, two questions: (a) Does his conduct amount to affirmation of his contract, and abandonment of his right to rescind it? (b) Is he precluded, or estopped, by his conduct from denying that he has abandoned his contract? And in answering each question, the position of the other party to the contract must be considered.’
‘The next feature of the doctrine of election in these cases which in my opinion is important is that when the person entitled to make the choice does so one way or the other, and this has been communicated to the other party to the contract, then the choice becomes irrevocable even though, if and when the first person seeks to change his mind, the second cannot show that he has altered his position in any way. This being so, I do not think that a party to a contract can realistically or sensibly be held to have made this irrevocable choice between rescission and affirmation unless he has actual knowledge not only of the facts of the serious breach of the contract by the other party which is the pre-condition of his right to choose, but also of the fact that in the circumstances which exist he does have that right to make that choice which the law gives him. To hold otherwise, subject to the considerations to which I shall refer in a moment, would in my opinion not only be unjust, it would be contrary to the principles of law which one can extract from the decided cases.’
‘With Stephenson and May LJJ, I do not think that a person (such as the plaintiff in the present case) can be held to have made the irrevocable choice between rescission and affirmation which election involves unless he had knowledge of his legal right to choose and actually chose with that knowledge.’
‘Since the plaintiff had no knowledge of his legal right to rescind the restaurant agreement, until he consulted new solicitors, his conduct in entering into possession of the restaurant and paying£10,000 to the first defendant, for this reason if no other, cannot in my opinion have amounted to an election to affirm the contract; the only remaining question can be whether the plaintiff by that conduct has estopped himself from relying on his right to rescind.’
‘It is inconsistent with general principles of the law, particularly that ignorance of the law is no defence, and also with the objective test of affirmation. It also makes it much more difficult for the defendant to discharge the burden of proving that the contract has been affirmed by the claimant, since the defendant would be required to prove that the claimant knew of the right to rescind. It follows that the preferable view is that it is enough that the claimant knows of the facts which trigger the ground of rescission without it being necessary to prove that the claimant was aware whether or not to affirm the contract.’
‘Are there reasons, in principle, why knowledge of the right to elect should not be required? The common law favours objective standards. In the criminal law a mistake of fact may excuse, but not a mistake of law. Ignorance of the law is generally treated as a misfortune, not an advantage. In Hourigan v Trustees Executors & Agency Co Ltd(1934) 51 CLR 619 at 651 Dixon J quoted Knight Bruce LJ saying in 1857 “generally when the facts are known … the right is presumed to be known”. Disputes about an election normally arise because the other party relies on an earlier election to defeat a later attempt to elect the other way. Legal professional privilege would make it difficult for that party to prove that the elector was aware of his right at the earlier time. A rule that knowledge of the right had to be proved would encourage perjury and reward those who do not seek advice. The preference of the common law for objective standards is reflected in the tests for contract formation, repudiation and estoppel by representation, and in the imputation of an agent’s knowledge to his principal. It would not be surprising if it did not allow a person who knows the facts to have his cake and eat it.’
‘The need for knowledge of the legal right, although established by authority, is difficult to justify in principle. The requirement is inconsistent both with the principle that ignorance of the law is no defence and with the principle that in the field of commerce the existence and exercise of legal rights should depend on objective manifestations of intent and not on a party’s private understanding. It is also potentially extremely difficult for the other party to prove such knowledge – all the more so since any relevant legal advice which may have been received will be protected from disclosure by legal professional privilege. The unfairness of the rule is mitigated, however, by a presumption that a party which had a legal adviser at the relevant time received appropriate advice. That presumption can only be rebutted by waiving privilege and proving otherwise: see Moore Large & Co Ltd v Hermes Credit & Guarantee plc [2003] Lloyd’s Rep IR 315, 334-6, paras 92-100.’
‘I add in parenthesis that, for present purposes, it is not necessary for me to consider certain cases in which it has been held that, as a prerequisite of election, the party must be aware not only of the facts giving rise to his rights but also of the rights themselves, because it is not in dispute here that the owners were aware both of the relevant facts and of their relevant rights.’
‘26. Not only is this distinction, with respect, well-founded but it provides a measure of reconciliation of conflicting authority as well as resolving the matter so far as concerns the present appeals. Where election is in question between contracting parties and, as in these appeals, the contract itself confers the inconsistent rights there can be no question whether a party had knowledge of his choice of rights. He is deemed to know the terms of his own contract and the rights it confers, at all events he cannot take advantage of his own ignorance (L’
‘35. Whether any distinction should be drawn between this class of case and fraudulent misrepresentation as Herring CJ suggested [i.e. in Coastal Estates v Melevende], need not be determined. However, it should be kept firmly in mind that the doctrine of election is of general application and that no good purpose is to be served by drawing distinctions in its various applications unless considerations of justice make it necessary or expedient so to do.’
‘74. That was said in a case concerned with an established area of true election, the affirmation of an insurance contract which an insurer is entitled to avoid for non-disclosure. I take this analysis as relating to what in that context needs to be objectively available to the non-electing party. I do not think that it is saying that in cases of election the party with the choice will be bound by sufficiently clear appearances even in the absence of any informed choice. That is a potentially difficult subject: on the whole it is necessary for the election to be exercised and to be exercised with sufficient knowledge. It is only in the case of estoppel that the representee is entitled to rely on an apparent promise or choice conveyed by the representation irrespective of the actual knowledge and decision of the party with the choice: see Chitty on Contracts, 29th ed, 2004, Vol I at para 24-008. However, there will be some circumstances where, even in the absence of an actual election, the party with the choice created by relevant knowledge, actual or obviously available, will be regarded as having exercised it after a reasonable time has passed: see Lord Goff in The Kanchenjunga at 398 LHC, and Clough v. L & N W Ry (1871) LR 7 Ex 26 at 34/35. This is, I think, part of the rationale of a doctrine which seeks to give a pragmatic response to parties in contractual relations who need to know where they stand. …’
‘74. … However, there will be some circumstances where, even in the absence of an actual election, the party with the choice created by relevant knowledge, actual or obviously available, will be regarded as having exercised it after a reasonable time has passed. …’
‘10.5 Where, in relation to any Supply Premises, this Contract is terminated by the Supplier pursuant to clause 10.2, the Customer shall within 10 days of the termination date pay to the Supplier the [sic.] 50 percent of the remaining value of this Contract to the Supplier in respect of the relevant Supply Premises (as determined by the Supplier acting reasonably) as notified by the Supplier.’