Wrongful termination is not always repudiation
Terminating without valid grounds is itself a repudiatory breach - potentially exposing you to the counterparty's loss of bargain. But not every mistaken termination crosses that line. In Woodar Investment Development Ltd v Wimpey Construction UK Ltd [1980] 1 WLR 277, the House of Lords held that an honest but mistaken invocation of a contractual termination clause is not automatically repudiatory; unless the invocation is abusive or made in bad faith, being wrong in law does not, by itself, turn it into a repudiation.
The test is the one from Eminence Property Developments Ltd v Heaney [2010] EWCA Civ 1168: judged objectively, has the party shown a clear intention to abandon and altogether refuse to perform? Honest reliance on a contractual provision, even if ultimately wrong, will not usually demonstrate that intention.
A defective notice may sometimes be withdrawn
Because termination is elective, a defective or wrongful notice that the other party does not accept as a repudiation may not be the end of the matter. In URE Energy Ltd v Notting Hill Genesis [2025] EWCA Civ 1407 (on appeal from [2024] EWHC 2537 (Comm)), an initial attempt to terminate was problematic, but the counterparty did not accept it as repudiatory; the terminating party was ultimately held to have validly terminated and to be entitled to its contractual termination payment.
So if a notice is flawed and has not been accepted as a repudiation, there may be room to withdraw it and serve a valid one. But do not rely on that escape route: it depends on the counterparty's response and on the facts.
Plead grounds in the alternative
The safer course is to get the notice right the first time by identifying every viable ground in advance and invoking them in the alternative - the relevant contractual clauses and, where appropriate, acceptance of repudiatory breach at common law - while making clear you are terminating now.
For example: terminate under the material-breach clause; and/or under any persistent-breach clause; and/or by acceptance of the repudiatory breach at common law; reserving all rights and remedies. Alternatives guard against any one ground failing, without creating doubt about whether you are actually terminating.
Can a repudiatory breach be cured? Kulkarni
Contractual termination clauses often allow termination only for a breach not capable of remedy, or after a cure period. Whether a breach is capable of remedy is a contractual question, not a common law one. In Kulkarni v Gwent Holdings Ltd [2025] EWCA Civ 1206, the Court of Appeal held that the fact a breach is repudiatory does not, of itself, make it incapable of remedy for the purposes of such a clause - remediability is assessed practically, asking whether the position can be put right for the future.
Nor does a breach being deliberate necessarily make it incapable of remedy, unless the contract requires good faith. So a serious, even repudiatory, breach may still have to be given a cure opportunity under the contract's own machinery.
Drafting cure provisions
If you intend repudiatory or specific breaches to sit outside the cure regime, say so. A bare cure clause - on breach, the other party has a set number of days to remedy - may, after Kulkarni, allow even a serious breach to be cured. To preserve an immediate right to terminate for the worst breaches, carve them out expressly - for instance, that a breach amounting to a repudiatory breach at common law may be accepted immediately, without any obligation to allow cure.
And when operating a cure clause, comply with it: terminating before a valid cure period has expired risks being a wrongful, and possibly repudiatory, termination.
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Practical checklist
- Remember that terminating without valid grounds can itself be a repudiatory breach.
- An honest, mistaken invocation of a clause is not automatically repudiatory (Woodar v Wimpey [1980] 1 WLR 277).
- If a notice is defective and not accepted as repudiation, consider withdrawing and re-serving (URE Energy [2025] EWCA Civ 1407) - but do not rely on it.
- Identify all viable grounds and invoke them in the alternative, without creating doubt that you are terminating now.
- Expect that a repudiatory breach may still be capable of remedy under a cure clause (Kulkarni v Gwent Holdings [2025] EWCA Civ 1206).
- Carve repudiatory or specified breaches out of any cure regime if you want an immediate right - and comply with cure periods before terminating.
This guide is informational only and is not legal advice. It does not replace advice from licensed counsel on the facts of a specific transaction.
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