CA-2024-001924 - [2025] EWCA Civ 1206

I have already said that the case law shows that, when determining whether a breach of contract is “capable of remedy” within the meaning of either a contractual provision or a comparable statutory one, a “practical rather than technical” approach is, at least normally, to be adopted. Phoenix Media, where Neuberger J spoke of irremediability being interpreted in a “common sense way” provides further support for that.

In Schuler v Wickman, Lord Reid explained that “remedy” meant “cure so that matters are put right for the future” rather than “obviate or nullify the effect of a breach so that any damage already done is in some way made good”. In Savva v Hussein, Staughton LJ thought it “sufficient that the mischief resulting from a breach of covenant can be removed”. In Telchadder, Lord Toulson (echoing Lord Wilson) equated the “practical approach” with asking “whether and how the mischief caused by the breach can be redressed”. The fact that, in a sense, “[t]he moving finger writes and cannot be recalled” (to quote Staughton LJ) does not mean that either a failure to comply with an obligation on time or a past breach of a negative obligation will necessarily, or even normally, result in irremediability.

That is not, of course, to say that every breach of contract is “capable of remedy”. In Akici, Neuberger LJ explained that landlord and tenant authorities indicated that subletting and illegal and immoral user are incapable of remedy. In Telchadder,Lord Wilson observed at paragraph 30 that in Rugby School (Governors) v Tannahill [1935] 1 KB 87, where premises had been used as a brothel, “the continuing stigma precluded remediability”. In Force India, the breaches were irremediable because “the marketing genie cannot be put back into the bottle”, and Rix LJ evidently considered that “the publication of confidential information or the publishing of advertising matter not containing a party’s name” could be incapable of remedy. Telchadder illustrates that anti-social behaviour causing lasting harm, fear or anxiety could also be irremediable. The existence of enduring prejudice can plainly be important more generally to whether a breach is remediable.

Phoenix Media indicates that the fact that a breach was committed deliberately may be significant if that “irrevocably and negatively” impacts upon an “ongoing business relationship involving trust and confidence”, at any rate where the contract includes a good faith provision. While that may be so, the wilfulness of a breach will not usually, I think, matter. There is no suggestion in the authorities that a tenant who has deliberately failed to paint as required or has deliberately used premises as a doctor’s consulting room despite a covenant to use only for residential purposes (to take breaches postulated in Akici)will on that account have committed an irremediable breach. In Telchadder, Mr Telchadder will not have “jumped out at Miss Puncher” by accident, but his breach was still remediable. The focus being on whether, as a practical matter, things can be put right for the future, the motivation for the breach will not normally be important. Nor, in my view, does Suisse Atlantique suggest otherwise. The question there was whether the deliberate character of a breach could make it fundamental or repudiatory, not whether that could bear on whether the breach was remediable.

It is also relevant to note here that there are only limited circumstances in which this Court will interfere with either a finding of fact or an evaluative assessment: see e.g. Henderson v Foxworth Investments Ltd [2014] UKSC 41, [2014] 1 WLR 2600, especially at paragraph 67, R (R) v Chief Constable of Greater Manchester [2018] UKSC 47, [2018] 1 WLR 4079, at paragraph 64, and In re Sprintroom Ltd [2019] EWCA Civ 932, [2019] 2 BCLC 617, at paragraphs 76 and 77. In Telchadder, Lord Wilson said as regards a breach of covenant against anti-social behaviour that the “practical inquiry whether and if so how … the mischief resulting from [the] breach could be redressed” “requires a value judgment on the part … of the court in determining whether the requirements of section 146(1) of the 1925 Act, or, as the case may be, of the paragraph 4 term have been satisfied”: see paragraph 67 above. An issue as to whether a particular breach is “capable of remedy” may also often be appropriately characterised, to a great extent at least, as one of fact.