A costly delay

The Court of Appeal last month confirmed that, if Party A delays or fails to react to Party’s B material breach, it can be held to have affirmed the contract despite the agreement containing a clause to the eff ect that delay, neglect or forbearance in enforcing a provision will not be deemed a waiver nor in any way prejudice any right under the agreement. Th at then is a long way of saying that parties to commercial contracts cannot blithely rely on such clauses to excuse them from delay or neglect in acting upon a counterparty’s breach. Protection cannot necessarily be assumed merely from a clause in a contract: a court may nonetheless find that a party has by conduct elected to affi rm the contract and thereby abandoned contractual rights to terminate for material breach.
Appellant companies (T) in Tele2 International Card Co SA (and others) v Post Offi ce Ltd [2009] EWCA Civ 9 entered into an agreement with