[2025] EWHC 2036 (Comm)

Mr Shirley submitted that uncertainty as to whether an actual breach is to be anticipated is catered for by the provision for the Claimant to make a “REASONABLE JUDGEMENT”, so that type of uncertainty cannotbear on the meaning of “IS PROHIBITED” or “WILL EXPOSE”; in which case the Claimant’s “risk of contravening” or “being found by the relevant authorities to have contravened” gloss would be limited in its application to situations in which all the Claimant is reasonably judging is that an authority might find that there has been a contravention even though it was not reasonable to judge that there would be a contravention.

By requiring the reasonable judgment to be that of the Claimant itself, sub-clause (C) excludes any submission that the Defendant bore (or bears) the burden of proof. This analysis is not affected by saying that the Defendant needs to establish repudiatory breach. The correct analysis is that the Defendant relies on the Claimant’s refusal to perform and the Claimant then sets up sub-clause (C) as permission for non-performance. In such circumstances the Claimant must therefore establish that sub-clause (C) applies.