Waiver by election and by estoppel

In URE Energy Ltd v Notting Hill Genesis [2025] EWCA Civ 1407, the Court of Appeal confirmed that a party which has a right to terminate a contract will not be held to have affirmed the contract and so waived that right unless it knew not only of the facts which gave rise to the right to terminate but also that it had the right so to terminate the contract. On the facts of the case the claimant did not know of its right to terminate until more than six months after it had arisen but it was held to be entitled to exercise its right to terminate when it became aware of the existence of the right, notwithstanding the passage of time and the contractual performance that had taken place during the intervening period. While the Court of Appeal acknowledged the existence of a number of mitigating factors which will limit the scope of this rule, including the operation of waiver by estoppel, none of these mitigating factors were held to be applicable on the facts of the case with the consequence that the claimant was held to be entitled to terminate the contract and recover a termination payment of £3,946,861.56.