KB-2021-000741 - [2025] EWHC 2096 (KB)

The next questions are in respect of the various represented claimants, (i) whether JBL was in repudiatory breach, and (ii) if so, whether they were terminated lawfully by the various claimants respectively. JBL submits that it was not in repudiatory breach, and if it was, that the various claimants affirmed their respective agreements.

The relevant law is set out in Chitty on Contracts (35 Ed.) at 12-043 as follows:

“The bar which must be cleared before there is an entitlement in the innocent party to terminate the contract is a “high” one. A number of expressions have been used to describe the circumstances that warrant termination, the most common being that the breach must “go to the root of the contract”. It has also been said that the breach must “affect the very substance of the contract”, or “frustrate the commercial purpose of the venture”, and, at the present day, a test which is frequently applied is that stated by Diplock LJ in Hongkong Fir (Hong Kong Fir Shipping Ltd v Kisen Kaisha Limited [1962] EWCA Civ 7) in the following terms:

“Does the occurrence of the event deprive the party who has further undertakings to perform of substantially the whole benefit which it was the intention of the parties as expressed in the contract that he should obtain as the consideration for performing those undertakings?”

In Valilas v Januzaj [2014] EWCA Civ 436, Floyd LJ at [53} stated:

“Whether a breach or threatened breach does give rise to a right to terminate involves a multi-factorial assessment involving the nature of the contract and the relationship it creates, the nature of the term, the kind and degree of the breach and the consequences of the breach for the injured party: see the passage from the majority decision of the High Court of Australia in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61 (2007) 82 AJLR 345 at [54] cited by Lewison LJ in Telford Homes (Creekside) Ltd v Ampurius Nu Holdings [2013] EWCA Civ 577 at [50].”

The reference to Koompahtoo describes a breach as “going to the root of the contract” at [54] as:

“… a conclusory description that takes account of the nature of the contract and the relationship it creates, the nature of the term, the kind and degree of the breach, and the consequences of the breach for the other party.”

In the above, Lewison LJ questioned whether the deprivation must be of the “whole” or “part” of the intended contractual benefit. Lewison LJ stated at para. 48 as follows:

“[The earlier cases] adopt as the relevant test whether the breach has deprived the injured party of ‘substantially the whole benefit’ of the contract; which is the same test as that applicable to frustration. This sets the bar high. Other cases adopt a view that is more favourable to the injured party. Thus in … Buckley LJ said: ‘To constitute repudiation, the threatened breach must be such as to deprive the injured party of a substantial part of the benefit to which he is entitled under the contract’”

Lewison LJ added at para. 49:

“On the face of it therefore there is a tension between the test of deprivation of ‘substantially the whole benefit’ (Diplock LJ) and ‘a substantial part of the benefit’ (Buckley LJ). In Lord Wilberforce … said: ‘The difference in expression between these two last formulations does not, in my opinion, reflect a divergence of principle, but arises from and is related to the particular contract under consideration: they represent, in other words, applications to different contracts, of the common principle that, to amount to repudiation a breach must go to the root of the contract’.

In the same judgment, Lewison LJ also said the following:

“44.

…First, the task of the court is to look at the position as at the date of purported termination of the contract even in a case of actual rather than anticipatory breach. Second, in looking at the position at that date, the court must take into account any steps taken by the guilty party to remedy accrued breaches of contract. Third, the court must also take account of likely future events, judged by reference to objective facts as at the date of purported termination.

…

51.

Whatever test one adopts, it seems to me that the starting point must be to consider what benefit the injured party was intended to obtain from performance of the contract….

52.

The next thing to consider is the effect of the breach on the injured party. What financial loss has it caused? How much of the intended benefit under the contract has the injured party already received? Can the injured party be adequately compensated by an award of damages? Is the breach likely to be repeated? Will the guilty party resume compliance with his obligations? Has the breach fundamentally changed the value of future performance of the guilty party's outstanding obligations?”

In continuing contracts, a party’s repeated breaches might justify the other in terminating the contract even absent a breach of a “condition” or a renunciation of the contract. In Force India Formula One Team Ltd v Etihad Airways PJSC [2010] EWCA Civ 1051, the Court of Appeal considered a series of breaches of a sponsorship agreement had cumulatively involved repudiation. Rix LJ concluded (at [87]) that there had been “a series of repeated, or continuing, breaches which were sooner or later but ultimately repudiatory”.The discussion in Force India was considered by Foxton J in SK Shipping Europe Plc v Capital VLCC 3 Corp [2020] EWHC 3448 (Comm) (affirmed on appeal):

“[305] It is accepted that the terms of the Charterparty which are said to have been breached were innominate terms. However, it is clear that a series of non-repudiatory breaches may cumulatively amount to a renunciation or repudiation of a contract (see Force India Formula One Team Ltd v Etihad Airways PJSC [2011] ETMR 10, [87]). This is more likely to be the case when the breaches are linked in their effect, or when they reflect the pursuit by the defendant of an overriding strategy (as was the case in Force India). However, it is still necessary to establish that the cumulative effect of the various breaches, taken together, amounts to a repudiation…”

Applying this to the instant case, the implied duty of trust and confidence as an implied term is a shorthand. As is clear from Malik and other authorities, the implied term is that the party having that duty is obliged “not to conduct itself, without reasonable or proper cause, in a manner likely to cause serious damage to the relationship of mutual trust and confidence.” The very statement of the term confines it to conduct likely to cause serious damage to the relationship. Likewise, the implied term of good faith to refrain from conduct which in the relevant context would be regarded as “commercially unacceptable” by reasonable and honest people is not confined to conduct which is dishonest A breach or threatened breach of any of the implied terms of good faith have given rise to a right to terminate.

In the instant case, the breaches identified above comprise a course of conduct and/or multiple breaches, which by themselves or in their totality have gone to the root of the contract. The breaches have continued throughout the duration of the agreements and have caused serious damage to the relationship between the parties and/or amounted to commercially unacceptable behaviour and/or have undermined the terms of the bargain. This has caused distress and anguish to the franchisees who find it extremely difficult to be in a contact with a company owned and controlled by Mr Benson. Returning to the supplemental note of JBL of 17 April 2025, the complaint is not about objectionable or antisocial behaviour, but is about conduct in breach of the pleaded implied terms.

JBL’s case is that the Claimants’ action is a construct to deal with the problems caused by COVID, but they were not matters for which JBL was at fault. In my judgment, that was not the case. The breaches were of a similar character. There was a whole course of conduct such that the relationship of trust and confidence had been very seriously damaged well before the outbreak of COVID and/or comprised commercially unacceptable behaviour. This was a case of a series of multiple breaches of a similar kind throughout the period of the agreements which became repudiatory. This behaviour continued at the time of COVID. Instead of working cooperatively with the franchisees, JBL through Mr Benson acted in an aggressive and uncooperative way prior to lockdown. Thereafter, he sought unilaterally to vary the terms of the agreements so as to secure a gain for JBL at the expense of the franchisees. He did not withdraw the attempt to vary the terms of the agreements when it was pointed out that these were unlawful unilateral purported variations.

I am satisfied that the breaches of contract go to the root of the various franchise agreements. Having considered the evidence above, by way of non-comprehensive summary, the following common allegations have been proven, namely:

In the instant case, the breaches identified above comprise a course of conduct and/or multiple breaches, which by themselves or in their totality have gone to the root of the contract. This takes into account the following matters:

Various cases on repudiatory breach have been submitted about what conduct amounts to a repudiatory breach or a breach of the implied term of trust and confidence. Many of the cases were about a sudden loss of temper by an employer which was capable of destroying the relationship or causing serious damage to it. The instant case is very different from the single instance case. It is a case of numerous breaches of a similar character which caused, in respect of the instant Represented Claimants, serious damage to trust and confidence and/or comprised conduct which was commercially unacceptable.

This was not conduct which was nuanced or on a borderline. In many cases, the conduct was directed to everyone, for example, the triumphalism about court cases and obtaining judgments and possession orders. In other cases, in respect of abusive and humiliating behaviour, it had a knock on effect beyond he person to whom it was directed because it instilled fear that if another franchisee crossed Mr Benson’s path, there would be trouble. The effect of numerous incidents have led to a collective sense of fear of him by these Claimants. The common accounts are not because they have embellished an account for the purpose of justifying early termination, but because it reflects the multiple instances of commercially unacceptable behaviour.

The Claimants have proven their case by relying on the common breaches. This has obviated the need to prove claimant by claimant the specific breaches in relation to such claims. In some instances, as described above, specific allegations of individual claimants have been proven and they have been confirmatory of or contributed to the common breaches. Even where specific allegations have not been proved, the evidence has provided a context in which to judge the alleged breaches of contract, and in particular the breaches common to the Claimants generally.

This is a case which is decided on its own facts. Neither in the conclusions about the implied terms or in the findings on the facts of this case of repudiatory breaches of contract does it have any direct application to other franchise networks. Further, it is a case about agreements which were terminated almost five years ago. It does not therefore a bearing upon, or application to, the current contractual relationships of JBL. On the evidence of this case, I am satisfied that the breaches of the contracts of the Represented Claimants has been proved to the extent set out above and that they have been repudiatory, such as to entitle the Represented Claimants to terminate subject to any affirmation of the agreements. It is to that part of the third issue to which this judgment now turns.

According to the admitted facts, on 19 August 2020, the First to Ninth Claimants all received advice from solicitors, namely those who act for them in this action, namely Aquabridge Law. The inference is that in the weeks prior to 19 August 2020, there were discussions between various franchisees, which led to legal advice being taken by these Claimants.

Aquabridge Law sent to JBL a without prejudice letter on 14 September 2020 in which allegations were made, but without identifying the names of these Claimants for fear that their position as franchisees might be prejudiced. Since the letter was without prejudice, the Court has not been shown the letter, but it is to be inferred that there must have been allegations of dissatisfaction made on behalf of the nine Claimants then not identified. It appears that JBL was not prepared to engage in negotiation with unidentified franchisees.

On 5 October 2020 an open letter was sent by Aquabridge Law naming the first nine Claimants. That letter contended that there was either an employment relationship or one in which the parties owed duties of good faith to one another due to the long-term nature of the commercial relationship of the parties and importing duties of cooperation and trust and confidence among other duties. It alleged fourteen respects in which these duties had been breached. It alleged that the conduct was commercially unacceptable and comprised a repudiatory breach of contract. It reserved a right to terminate for repudiatory breach.

According to the admitted facts, on 12 October 2020, the parties attempted ADR through mediation, but evidently without success. On 13 October 2020, Aquabridge Law send an e-mail requiring a substantive response to the matters contained in the letter of 5 October 2020 by 4:00pm on 14 October 2020. Just after that time, Holmes & Hills stated that they regarded the timetable for responses as unreasonable and would revert in due course as necessary.

On 19 October 2020, Aquabridge Law wrote by an email timed 4.17pm, saying that no more time was required to address the numerous allegations and took the view that JBL was either unwilling or unable to do so. In those circumstances, notice was given that each of the first nine Claimants exercised their right to elect to accept JBL's repudiation of their respective contracts. It asserted that they were discharged with immediate effect.

Just over two hours later on the same day, Holmes & Hills replied saying in effect that the e-mail of 5 October 2020 did not comply with the pre-action protocol. It denied that JBL was in breach of the franchise agreement or that the first nine Claimants were entitled to take action to terminate the agreement. It stated that their purported termination was a repudiatory breach of contract. It said that JBL was entitled either to accept the breach as terminating the agreements and claim damages or to continue to comply with the agreements.

According to the admitted facts, on 10 November 2020, the Tenth to Eighteenth Claimants received advice from Aquabridge Law. They said that they wished to remain anonymous at that stage for fear of reprisal for having taken steps to investigate and assert their legal rights. They were referred to as a group of instructors. The e-mail was written in very similar terms to the e-mail on behalf of the first nine Claimants: there were ten allegations largely overlapping with the allegations made on behalf of the first nine Claimants.

On 19 November 2020, Holmes & Hills replied that they could not engage with anonymous franchisees. In order to respond substantively JBL would have to know the identity of those clients. They suggested a period of 21 days to respond in view of the then national lockdown. They said that if there was a termination without an opportunity to engage properly it is likely that JBL would hold them to be in repudiatory breach and would accept that breach and claim damages.

On 4 December 2020, Aquabridge Law identified the Tenth to Eighteenth Claimants, and said that the precise identities of the clients were not necessary in order to address the concerns and no more time was needed to address the various allegations. On behalf of those Claimants, their agreements were terminated for repudiatory breach with immediate effect.

According to the admitted facts, on 15 December 2020, Ms Thornton, the Nineteenth Claimant, received advice from Aquabridge Law. On 22 December 2020, these solicitors gave notice of termination of her agreement for repudiatory breach alleging an oppressive and untenable working environment and citing a post on the Just Benson Facebook page. That was a reference to the post which referred to franchisees lying their way out of agreements, He said: “…l think most of you know this company does not lose money to in this case nasty greedy people; Two can play at that. Give me some credit. Although they may have found a way to lie out of their agreements they have not left behind or sneaked out of damages claims. A lot of people and/or their guarantors are going to have a deservingly [sic] and horrible life changing 2021/2022 onwards”.

The last relevant termination was by Ms Freeman, the Twentieth Claimant, following receiving advice on 15 February 2021. She gave notice in writing by Aquabridge Law on her behalf by an email dated 22 February 2021. This email also referred to an oppressive and untenable working environment and referred to the previous correspondence containing the legal framework of the claims. It gave notice of termination of the agreement of Ms Freeman for repudiatory breach.

Ms Freeman had previously on three occasions in writing given notice to JBL that her contract ended on 16 January 2021, and that she would not be renewing. She had sought confirmation that her understanding that her agreement would end on that date was correct. Those emails were dated 14 July 2020, 27 August 2020 and 26 November 2020. There was no response to each of the emails, as a result of which Ms Freeman telephoned the office and was told that she would have to work until December 2021. This provides some explanation as to why she took legal advice at a later stage than the others in that she believed that the agreement would expire by effluxion of time. The information was to the effect that almost a year more was required. In fact, when it came to the counterclaim, there was added a further 26 weeks of coronavirus ‘suspension’ of 26 weeks as a result of which it was said that the end date would have been 8 June 2022. This is an example of a franchisee who struggled with reason to identify the length of the agreement and was not assisted despite three written requests to identify the termination date as contended for by JBL.

It is well established that an innocent party has an election as to whether to accept the breach as discharging the contract or to affirm the contract. There is a dispute between the parties. The Claimants submit that they elected to accept the breach or breaches as discharging them and each of them from their respective contracts. JBL has submitted that the right to terminate, if it ever existed, has been lost by affirmation of the agreements and each of them.

The Claimants rightly accept that in the context of an alleged repudiatory breach, the innocent party will lose the right to terminate the contract if he communicates to the other party unambiguously his intention to affirm it or waits too long before giving notice of termination. The principles were set out by Browne Wilkinson J in the Employment Appeal Tribunal in WE Cox Toner (International) Ltd v Crook [1981] I.C.R. 823 at 829C-F in the following terms:

“It is against this background that one has to read the short summary of the law given by Lord Denning M.R. in the Western Excavating case [1978] I.C.R. 221 . The passage, at p. 226:

“Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged.”

This is not, and was not intended to be, a comprehensive statement of the whole law. As it seems to us, Lord Denning M.R. was referring to an obvious difference between a contract of employment and most other contracts. An employee faced with a repudiation by his employer is in a very difficult position. If he goes to work the next day, he will himself be doing an act which, in one sense, is only consistent with the continued existence of the contract, i.e. he might be said to be affirming the contract. Certainly, when he accepts his next pay packet (i.e., further performance of the contract by the guilty party) the risk of being held to affirm the contract is very great: see Saunders v. Paladin Coachworks Ltd. (1967) 3 I.T.R. 51 . Therefore, if the ordinary principles of contract law were to apply to a contract of employment, delay might be very serious, not in its own right but because any delay normally involves further performance of the contract by both parties. It is not the delay which may be fatal but what happens during the period of the delay: see Bashir v. Brillo Manufacturing Co. [1979] I.R.L.R. 295.

Although we were not referred to the case, we think the remarks of Lord Denning M.R. in the Western Excavating case are a reflection of the earlier decision of the Court of Appeal in Marriott v. Oxford and District Co-operative Society Ltd. (No. 2) [1970] 1 Q.B. 186 . In that case, the employer repudiated the contract by seeking to change the status of the employee and to reduce his wages. The employee protested at this conduct but continued to work and receive payment at the reduced rate of pay for a further month, during which he was looking for other employment. The Court of Appeal (of which Lord Denning M.R. was a member) held that he had not thereby lost his right to claim that he was dismissed. In the Western Excavating case Lord Denning M.R. explains, at p. 227, that the case would now be treated as one of constructive dismissal. This decision to our mind establishes that, provided the employee makes clear his objection to what is being done, he is not to be taken to have affirmed the contract by continuing to work and draw pay for a limited period of time, even if his purpose is merely to enable him to find another job.”

This recognises as in other respects (for example in respect of restrictive covenants or implied terms) that in a contract of employment an employee may be treated differently and sometimes more tenderly than between parties of equal bargaining power in a commercial contract.

The law applies a realistic approach, especially in employment contracts, to affirmation by giving the innocent party a reasonable time to decide whether or not to terminate: see Air Canada v Lee [1978] IRLR 392. In Buckland v Bournemouth University [2010] EWCA Civ 121, Jacob LJ said:

“When an employer commits a repudiatory breach there is naturally enormous pressure put on the employee. If he or she just ups and goes they have no job and the uncomfortable prospect of having to claim damages and unfair dismissal. If he or she stays there is a risk that they will be taken to have affirmed. Ideally a wronged employee who stays on for a bit whilst he or she considered their position would say so expressly. But even that would be difficult and it is not realistic to suppose it will happen very often. For that reason the law looks carefully at the facts before deciding whether there has really been an affirmation.” (emphasis added)

In that case, it was held that Professor Buckland did not affirm the contract despite the passage of 7 months since the repudiatory breach and took into account the fact that he was entitled to have regard to the adverse effect that an earlier departure would have had upon his students.

A similar approach to the question of affirmation was taken by the Court of Appeal in Bliss v South East Thames Regional Health Authority [1985] IRLR 308, reversing the decision of the trial judge that Mr. Bliss had affirmed his contract by continuing to accept payment of salary. In Sheet Metal Components v Plumridge [1974] IRLR 86, [1974] ICR 373 the employees worked for two months without losing right to claim constructive dismissal. Further, in Lewis v Motorworld Garages Ltd [1986] ICR 157, the Court of Appeal held that even if a party has waived repudiatory breaches in the past, he may pray in aid the earlier breaches if later he leaves as a result of further conduct that may have contributed to a breach of the implied term.

JBL points to the charterparty case of SK Shipping Europe plc v Capital VLCC 3 Corp & anor [2020] CLC 816 at para. 201 and following. It is apparent that whilst the broad principles about affirmation are not different for an employee in an employment contract from a charterer or shipowner in a charterparty or an insurer or commercial insured in an insurance contract, the fact intensive process recognises the particularly difficult position of an employee having to make a decision with such important consequences: see the quotation above of Browne Wilkinson J in WE Cox Toner (International) Ltd v Crook as quoted above.

Even in the commercial context, a part of Foxton’s judgment in the SK Shipping Europe case (in the case of affirmation as a bar to rescission, but of application to affirmation of a contract in the alternative to termination for repudiatory breach) is at para. 203 as follows:

“(v)

Because an election once made is final and irrevocable, the party making the election is entitled to a reasonable time to make a decision, the length of which will depend on the particular circumstances: McCormick v National Motor & Accident Ins Union (1934) 49 Ll L Rep 361, 365 (Scrutton LJ) . This is so even if, during that period, the party with the right of election is exercising rights under the contract (in that case the liability insurer's right to conduct the insured's defence).

(vi)

Nor does mere lapse of time of itself amount to an election unless it is of such a length of time as to demonstrate an unequivocal decision to elect: Scandinavian Tanker Trading Co AB v Flota Petrolera Ecuatoriana (The Scaptrade) [1981] 2 Ll Rep 425, 430.”

By reference to the SK Shipping Europe case, JBL accepts that the Claimants could not affirm their contracts until after they had knowledge of their right to do so (para. 202(i)). JBL submits by reference to para. 202(v) that whilst it is difficult to show that they had that knowledge, there is a presumption that a party with a legal adviser would have such knowledge which presumption can be displaced. Accordingly, it is submitted that such knowledge can be presumed to have been acquired from the involvement of their solicitors, Aquabridge. Law It relies on the period of two months after 19 August 2020 prior to the termination of the agreements of the first nine Claimants during which they continued to pay their fees as an affirmation, and in the case of Mr Robins to take training, acting as if their agreements continued. They recognise that during that period of time, there was a without prejudice as to costs letter of 14 September 2020 and an open letter of 5 October 2020. The former letter has not been shown to the court because it was the subject of joint privilege.

I am satisfied that there has been no affirmation in respect of each of the Represented Claimants. I have reached that conclusion bearing in mind the following considerations.

First, there was a need for advice in connection with a complicated long-term agreement. There was a lot to consider before terminating such a relationship. On the one hand, the franchisee would end up without employment or a business. There was no possibility of selling the business on. On the face of it, there was a restriction on competition for three months after termination (although those restrictions would not survive a repudiatory breach). On the other hand, the franchisee might, if there was no repudiatory breach, render themselves liable for damages, and in many cases of sums which were colossal relative to their earnings. Based on Mr Benson’s postings on Facebook, the franchisees knew that they could expect claims from Mr Benson on behalf of JBL who wrote and spoke about his cases in an aggressive, and allegedly intimidatory, manner. It followed that there was an agony about the decision which needed time both in order to receive the advice and to decide what to do. There was law to decide both about employment law and the law of contract, some of which involved developing legal principles. The factual basis of their claim was detailed and complex. This was very far removed from a binary decision which a lawyer instructed throughout could advise upon as might be the case in the shipping or insurance cases referred to above.

Second, whilst each incident was separate in time, the general allegations were continuing. For example, if there was a unilateral variation of the agreements to extend their duration by adding the periods of suspension, that was continued each time there was a Covid suspension. It was not only by the email of 24 March 2020, but also in further communications including one of 15 June 2020, and thereafter it continued to hang over franchisees. If the allegations of intimidatory conduct are upheld (for example about litigation in the terms used) or racist behaviour as alleged, they continued unabated. Further, despite having agreed in January 2020 to allow franchisees to fix their prices, on 29 September 2020, Mr Benson on behalf of JBL sent a letter to franchisees increasing the prices of lessons, thereby contradicting for a further time the instructors’ right to set their own prices. These were no single alleged breaches of contract, but a course of conduct in which the impact was said to be continuing on the franchisees.

Third, there was no representation to JBL that the conduct was being accepted or that the agreements were affirmed. On the contrary, the engagement with JBL on behalf of franchisees started from mid-September 2020 both without prejudice and then openly, with franchisees not identified and then identified. During this engagement, the fact that franchise fees were being paid or the agreements performed would not have been received as an affirmation of the agreements because it was known that franchisees were considering their positions.

Fourth, it is apparent first that there was significant fear about coming forward and identifying themselves in view of the way in which dissenting and terminating franchisees had been treated in the past. That explains the wish in the first instance to be anonymous and test the water before coming forward. Whether or not that fear is well placed depends on the approach of the Court to the allegations of intimidatory conduct. Given the Court’s approach to the allegations of intimidatory conduct, that fear was well placed.

Fifth, bearing in mind the enormity of the consequences of the decision, it is understandable that the Claimants wished to engage with JBL before making a decision as to whether to terminate. Hence, engaging with JBL on a without prejudice basis by the letter of 14 September 2020 or by mediation on 12 October 2020 or by open letters seeking responses on 5 and 13 October 2020 does not amount to an affirmation, but was a part of a process of trying to resolve the matter and/or hear the other side of the matter, prior to deciding whether to accept the alleged repudiation. This was all very different from the party who reserves rights whilst at the same time as taking substantially the benefit of the contract.

The relative timidity or caution of the other Claimants does not make their position significantly different in view of the four numbered points above. This was not the case of a single event such as a variation in terms of an employment contract where the employee lived with it, and only thereafter alleged that it was repudiatory. These are allegations of conduct which repeat themselves and/or are of a continuing nature, and on the case of the Claimants progressively undermining trust and confidence (alleged to be an implied term of the relationship). The Tenth to Eighteenth Claimants did not delay so long that it could not have been expected that there would be no other Claimants coming to join those already identified. It was a relatively short period of time between the time of the termination of the first nine Claimants on 19 October 2020 and the taking of advice of the Tenth to Eighteenth Claimants taking advice from Aquabridge Law on 10 November 2020. They sent an open letter through Aquabridge Law on 12 November 2020, to which there was no substantive answer because they did not identify themselves at first. They terminated on 4 December 2020.

In my judgment, these Claimants did not because of their hesitation have such a period of delay as amounted to an affirmation of the agreements. It is said that the continuing payments of franchise fees amounted to an affirmation. I do not accept this proposition in that the Claimants required time to consider their position and if they withheld payment during this period, then under the terms of the agreements, JBL could have treated this as a breach of a fundamental term whereupon it would have been the Claimants, and not JBL, who would have been in repudiatory breach. Further, the various considerations relevant to there being no affirmation on the part of the first nine Claimants applied also to these Claimants, such that the allegation of affirmation is not made out.

As regards the Nineteenth Claimant, Ms Thornton, although there was delay on her part in bringing the application, she is still able to refer to continuing breaches. She is also able to invoke the Facebook posting of 14 December 2020 which went beyond notification and was a further instance of intimidatory conduct of a kind with the conduct complained of by the first eighteen Claimants. In any event, I do not regard the delay in her case of such a magnitude as to give rise to an affirmation, nor do I regard her conduct, particularly in paying the franchise fees, as amounting to affirmation. She received advice on 15 December 2020, and she served notice of termination through a letter of Aquabridge Law on 19 December 2020, that is to say just after a fortnight after the letter on behalf of the Tenth to Eighteenth Claimants.

As regards the Twentieth Claimant, Ms Freeman, she had thought that her agreement was about to expire by effluxion of time. Only following none of three emails to that effect being attended to, she was confronted for the first time with the assertion that her agreement would not expire until December 2021. In fact, in the Counterclaim, the case of JBL became that Ms Freeman’s agreement would not expire until June 2022. The extra period of six months was based on the alleged extension of the agreement as a consequence of JBL’s communications of 24 March 2020 and 15 June 2020, which the Claimants say was a unilateral variation of the agreement. It was at that point that Ms Freeman needed to confront for the first time the impact of the breaches and whether she too should terminate her agreement early. Looking at her case in that context, there was no question of her affirming the agreement. Given that it was apparently about to end, there was no point in her becoming involved in acceptance of repudiatory breach. It is JBL which caused the delay in the termination by not contradicting the belief of Ms Freeman that her agreement was to terminate despite three unanswered emails referring to a belief that her agreement was about to expire. When finally, JBL asserted that the agreement would continue until December 2021, then for the first time Ms Freeman had to consider her position. Given that JBL knew of her misapprehension (on their case) about term of her agreement, they could expect that there was no point in her terminating for breach, and the absence of such a termination did not amount to an affirmation of the agreement. When the position of JBL was made known, Ms Freeman received advice on 15 February 2021 and terminated on 22 February 2021. As with the other defendants, I do not regard her position as being any different the delay in her case of such a magnitude as to give rise to an affirmation, nor did her conduct, particularly in paying the franchise fees, amount to an affirmation of her agreement.