CA-2024-002472 - [2025] EWCA Civ 1407

This action was commenced by the issue of a claim form on 19^th October 2020. URE claimed a termination payment under clause 10.5 on the basis that it was entitled to terminate the contract (1) as a result of the amalgamation and (2) because of NHG’s repeated and persistent failures to provide access to electricity meters, which were not capable of being remedied; alternatively URE claimed common law damages for repudiation of the contract.

URE sought summary judgment of its claim based on the amalgamation and that application came before Mrs Justice Moulder in July 2022. One of the issues on that application was whether URE had given approval in advance to the amalgamation within the meaning of clause 10.2(d). Mrs Justice Moulder held that there was no real prospect of NHG succeeding in its defence that the amalgamation was approved in advance (URE Energy v Notting Hill Genesis [2022] EWHC 1809 (Comm), para 77).

Another issue was whether URE had elected to affirm the contract by continuing to perform it or was estopped from terminating the contract because NHG had relied to its detriment on an implied representation by conduct that URE was not treating the amalgamation as a termination event. As to this, it was common ground that there would only be an election if URE was aware of its right to terminate the contract, but that this was not necessary for an estoppel to arise (para 116). Mrs Justice Moulder held that the issue of election could only be determined at trial, in part because there was a factual issue whether URE in the person of Mr Ensor had been aware of URE’s right to terminate the contract as a result of the amalgamation (paras 112 to 114), but that there was no evidence of any detrimental reliance by NHG and therefore no arguable estoppel defence (para 122).

There was no appeal from Mrs Justice Moulder’s judgment and the trial was conducted before Mrs Justice Dias on the basis that (1) URE had not given consent to the amalgamation in advance, so that a right to terminate had arisen under clause 10.2(d) and (2) no defence of estoppel was available to NHG. As a result, we have heard no submissions on these issues and must proceed on the basis of Mrs Justice Moulder’s decision. So far as the amalgamation was concerned, the only issue at the trial was whether URE had lost the right to terminate the contract as a result of waiver by election.