University of Wale v London College of Business Ltd

Permission to appeal should be refused where the proposed ground has no real prospect of success and no other compelling reason justifies permission. A contractual entitlement to payment is not undermined merely because the mechanism by which sums became due is disputed, if the sums were in fact due at the relevant time. Waiver of a contractual right to terminate for non-payment requires a clear and unambiguous statement or conduct indicating that the right will not be exercised. Continuing reviews and statements of account do not, without more, establish waiver, particularly where an invoice clearly demands payment and asserts the contractual right.

The appellant challenged a judgment of His Honour Judge Keyser QC in Cardiff District Registry concerning sums invoiced under a Validation Agreement. It argued that the sum of £42,900 was not properly due under the contractual mechanism. It also argued that the University had waived its contractual right to terminate for non-payment because two reviews remained ongoing and the University had not terminated them before its letter dated 20 December 2012.

The central issues were whether the contractual analysis was invalidated by the mechanism by which the sums became due and whether the University’s conduct amounted to waiver of its rights under clause 10.

1. Application refused. Lord Justice Sales held that neither proposed ground had a real prospect of success and that there was no other compelling reason to grant permission.
2. On the first ground, sums amounting to £42,900 were in fact due when the relevant invoice was issued. The mechanism by which they became due did not invalidate the judge’s analysis of the contractual position, particularly the analysis at paragraph 87. The judge had made no appealable error.
3. On the second ground, the judge was entitled to conclude that the University had not waived its contractual rights. Waiver required a clear and unambiguous statement or conduct showing that the University would not rely on the relevant invoice or clause 10. The materials considered by the judge, including the continuing reviews, did not establish such a statement. The invoice dated 15 November 2012 and rendered on 16 November constituted a clear demand for payment and assertion of the University’s contractual rights.
4. The continued sending of statements of account was inconsistent with the contention that the University was precluded from asserting that the sums were due. The entitlement to terminate therefore remained alive. The application was dismissed and permission to appeal was refused.

1. Court of Appeal (Civil Division): Lord Justice Sales refused permission to appeal and dismissed the application.
2. Cardiff District Registry: His Honour Judge Keyser QC held that sums were due under the Validation Agreement and rejected the waiver argument.