A frustrating experience?

There is nothing controversial in the proposition that if contract performance becomes more difficult, then the party who fails to perform is generally liable for damages. One long-standing exception to this is the common law doctrine of frustration. This allows a contract to be discharged with no further obligations when performance becomes impossible, illegal or radically different from what was originally envisaged.

There are several well recognised scenarios in which contracts may be held to be frustrated. Cases have typically been confined to unusual situations, or situations where it would be extremely difficult to arrange for another individual to perform the services in question. In recent times, perhaps because of the development of statutorily implied terms, the doctrine of frustration has fallen out of vogue. The recent High Court judgment in Atwal v Rochester [2010] EWHC 2338, however, has placed it firmly back on the agenda for sole traders, and those contracting with them.

Factual foundation

In Atwal,