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Phones 4U and recent developments in the law of termination: drafters beware

David Lewis QC and Richard Greenberg report on the recent judgment of Mr Justice Andrew Baker in which Phones 4U obtained summary judgment dismissing a counterclaim brought by EE in: Phones 4U Limited (in administration) v EE Limited [2018] EWHC 49 (Comm).
 
The case will be of particular interest to those practitioners who are involved with drafting contractual termination notices, or advising on the effects of such notices. It may also be the first Commercial Court judgment to consider, albeit not use, emojis. 
 
The key point to note is Baker J’s decision that EE could not recover “loss of bargain” damages for repudiatory breach at common law, even if there had been such a repudiatory breach by Phones 4U, because EE’s termination letter relied solely on a contractual right to terminate, rather than a right to terminate for repudiatory breach at common law.
 
Attached is the full 20 Essex Street Bulletin.
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Relevant members: 
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Phones 4U and recent developments.pdf276.42 KB