Jurisdiction(s):
United Kingdom

Waiver by election and knowledge of termination rights: legal advice presumption, blind-eye knowledge and practical drafting points — URE Energy v Notting Hill Genesis (EWHC, England and Wales)

Published on: 05 November 2024

Published by a LexisNexis Commercial expert

Legal News

Article summary

Prepared by Pépin Aslett, barrister and Head of the Business and Property Team, St John’s Buildings, together with Lucas Gregory, pupil barrister, St John’s Buildings. URE Energy Ltd v Notting Hill Genesis [2024] EWHC 2537 (Comm)

What are the practical implications of this case?

This decision highlights several practical points for practitioners to bear in mind when asked to draft contractual terms or to advise in matters raising the defence of waiver by election. In deciding whether a rights holder suspected that a right might be engaged—and therefore should not have turned a blind eye—the court considered the following:

any correspondence or discussions concerning the contract and any potential breaches
whether the clause in question would have been prominent or of real significance to a party when negotiating and agreeing the contract
whether the term had been expressly brought to that party’s attention
whether the provision was drafted in clear language and likely to be readily understood by that individual

As these points indicate, the particular circumstances of the party and the specific facts of the dispute remain central to the analysis...

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