Breach did not deprive innocent party of a substantial part of the benefit of the contract

In Telford Homes (Creekside) Ltd v Ampurius NU Homes Holdings Ltd [2013] EWCA 577, [2013] All ER (D) 305 (May) the Court of Appeal allowed an appeal from the decision of Mr Justice Roth (on which see our October 2012 issue, pp1–4) and held that the defendants had not committed a repudiatory breach of contract. The Court of Appeal identified two errors in the reasoning of Roth J. First, he had failed to attach sufficient weight to the benefit which it was intended that the innocent party would receive from contractual performance. Given the long-term nature of that benefit (a 999 year lease), it could not be said that the delay in performance had deprived the innocent party of at least a substantial part of that benefit. Second, Roth J should have considered whether the breaches were repudiatory as at the date of the purported termination. The fact that the party in breach had resumed the works as at the date of termination was a further reason why it could not be said that the breach was repudiatory.