Tele2 International Card Company SA & Ors v Post Office Ltd [2009] EWCA Civ 9 (21 January 2009)

Tele2 International Card Company SA & Ors v Post Office Ltd [2009] EWCA Civ 9 (21 January 2009)

POL, by its conduct in continuing to perform the Agreement for nearly a year after the breach and without protest, affirmed the Agreement by election and lost its right to terminate for the 2004 guarantee breach; clause 16 did not preclude affirmation by election. However, Tele2 Ireland failed to prove it suffered any substantial loss as a result of the repudiation, as it did not receive any benefit from the Agreement after March 2004 and provided no evidence of net loss. POL was entitled to 50% of expiry revenues under the Agreement, and there was no effective variation reducing this entitlement. The judge was correct to refuse POL's late amendment to its defence.

Citation
[2009] EWCA Civ 9
Parties
Appellant/claimant: Tele2 International Card Company SA; Appellant/claimant: KUB 2 Technology Limited (formerly known as C3 Calling Card Company (Ireland) Limited); Appellant/claimant: KUB 7 Technology Limited (formerly known as Calling Card Company (UK) Limited); Respondent/defendant: Post Office Limited
Jurisdiction
England and Wales
Judgment Date
21 January 2009
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Appeal From High Court
Outcome
Appeal dismissed
Legal Topics
Termination of Contract, Repudiatory Breach, Damages for Breach of Contract, Affirmation by Election, Construction of Contract Terms, Variation of Contract, Expiry Revenues, Parent Company Guarantees
Contract Law Commercial Law Termination of Contract Repudiatory Breach Damages for Breach of Contract Affirmation by Election Construction of Contract Terms Variation of Contract +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 7 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Tele2 International Card Company SA

Appellant/claimant

KUB 2 Technology Limited (formerly known as C3 Calling Card Company (Ireland) Limited)

Appellant/claimant

KUB 7 Technology Limited (formerly known as Calling Card Company (UK) Limited)

Appellant/claimant

Post Office Limited

Respondent/defendant

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Appeal From High Court

Legal Issues

  1. 1 Whether POL was entitled to terminate the Agreement for failure to provide Parent Company guarantee letters for 2004
  2. 2 Whether POL affirmed the Agreement by election through delay and continued performance
  3. 3 Whether clause 16 of the Agreement precluded affirmation by election

Ratio Decidendi

POL, by its conduct in continuing to perform the Agreement for nearly a year after the breach and without protest, affirmed the Agreement by election and lost its right to terminate for the 2004 guarantee breach; clause 16 did not preclude affirmation by election. However, Tele2 Ireland failed to prove it suffered any substantial loss as a result of the repudiation, as it did not receive any benefit from the Agreement after March 2004 and provided no evidence of net loss. POL was entitled to 50% of expiry revenues under the Agreement, and there was no effective variation reducing this entitlement. The judge was correct to refuse POL's late amendment to its defence.

Court Disposition

Appeal dismissed

Orders

  • POL's termination was a repudiatory breach but Tele2 Ireland failed to prove substantial loss; no substantial damages awarded to Tele2 Ireland.
  • POL entitled to 50% of expiry revenues; no variation reducing entitlement established.