Jurisdiction(s):
United Kingdom

Waiver by election: Court of Appeal confirms actual knowledge of contractual right required; signing not enough — URE Energy v Notting Hill Genesis [2025] EWCA Civ 1407 (England and Wales)

Published on: 20 November 2025

Published by a LexisNexis Commercial expert

Legal News

Article summary

What are the practical implications of this case?

Waiver pervades commercial law. In its typical guise, concerning contractual termination, it governs when a party is taken to have chosen to affirm or bring the contract to an end, thereby underpinning transactional certainty. Yet, if the party alleging waiver must establish the counterparty’s awareness of the particular contractual entitlement, that task is onerous. Proving what someone knew is intrinsically problematic, and the challenge is compounded where the relevant material is, as is frequently so, potentially privileged. Even so, the Court of Appeal concluded it was compelled to decide that knowledge of the right is a prerequisite, including where the right stems from express, executed terms. No carve-out exists by which the contents of express clauses are treated as known simply because they were agreed. The most acute practical issues arise in long, complex commercial agreements in which rights may lie hidden in the thicket. That stance imposes a significant evidential hurdle on parties relying on waiver, especially with voluminous, negotiated paperwork, and confirms that election depends on proved awareness rather than execution of elaborate contractual terms...

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