Continuing breach becomes a repudiatory breach

In Ampurius NU Homes Holdings Ltd v Telford Homes (Creekside) Ltd [2012] EWHC 1820 (Ch), [2012] All ER (D) 43 (Jul) Mr Justice Roth held that the defendant developer had committed a repudiatory breach of contract in failing to procure that the works were carried out with due diligence. Due diligence was held to connote both the taking of due care and due expedition. While the delay had not initially been repudiatory, it had become such as a result of the passage of time (some 18 months) without the resumption of work. Further, it was held that the claimant had not affirmed the contract by entering into prolonged negotiations with the defendant. In reaching the latter conclusion Roth J had regard to the fact that the negotiations were conducted without prejudice to the claimant’s contention that it was entitled to terminate the contract if no resolution was achieved and the fact that the breach was a continuing one, the effect of which became more serious with the passage of time.