University of Wale v London College of Business Ltd

I am not satisfied from anything that has been said to me that the judge committed any error in his assessment that sums were actually due from the College to the University. In my view, what is said at paragraph 61 of the judgment to be common ground was indeed common ground at trial, as further appears from what I have been told today, namely that sums actually were due at the relevant time of issue of the relevant invoice in the sum of £42,900. Therefore, whatever the mechanism was behind sums becoming in fact due does not invalidate the judge’s analysis of the contractual position, which he undertakes in particular at paragraph 87. So far as that ground of appeal is concerned, I consider there is no real prospect of success upon appeal. There is no other compelling reason to grant permission to appeal on that ground. I agree with the reasons in that regard given by Lewison LJ on the papers.

The second ground of appeal contended for by Mr Simms today is that the University, by its conduct after submission of certain earlier invoices, in conducting two reviews which had not been terminated by the date of the University’s letter of termination dated 20 December 2012 (and received by the College on 27 December 2012), had waived its right to rely upon its contractual right of termination for non-payment of invoices contained in clause 10 of the Validation Agreement. Mr Simms contends that the College was led to believe, because of the ongoing review, that there would be no reliance upon the invoices and on clause 10. The judge did not accept the argument that there had been a waiver by the University of its rights to rely on the relevant invoice and the terms of the Validation Agreement: see paragraph 101. Lewison LJ dealt with a similar point when refusing permission on the papers, where he said, “The fact that the University continued to send statements of account is inconsistent with the allegation that it was in some way estopped from contending that the sums were not due. Thus the entitlement to terminate remained alive.”

The judge referred in particular to an invoice dated 15 November 2012, rendered on 16 November 2012. In my view, the judge was clearly entitled to form the view that, in light of all of the materials passing between the College and the University that he reviewed, there was no clear and unambiguous statement by the University that it would not rely upon its contractual rights in clause 10 and that the invoice rendered on 16 November 2012 represented a clear demand for payment and assertion of the University’s rights under the Validation Agreement. The judge was entitled, therefore, to find that there had been no waiver of rights by the University.

According, in my view, this second ground of appeal, like the first, has no real prospect of success and so this application is dismissed.