Sufficiency of knowledge of a right to enable its waiver (URE Energy Ltd v Notting Hill Genesis)
Commercial analysis: The High Court has given judgment in a contract dispute involving a defence of waiver by election. The court found that the claimant did not have actual or blind-eye knowledge of its right to terminate, so could not have elected to waive the right. In reaching its finding, the court noted that the claimant’s instruction of solicitors to draft and advise on the contract gives a rebuttable presumption of knowledge. However, the court found this to be rebutted, since evidence of advice sought and received showed the right was not advised on at the relevant times. While not being able to simply turn a blind-eye, the expectation not to avoid making suitable enquiries will require suspicion that a right may exist first, but mere awareness of a clause underpinning that right is not sufficient. This case will be of interest to those instructed in drafting contracts and those advising on whether a contractual right has been effectively waived, when knowledge is disputed.Written by
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