The dispute arose between two companies, one of which (Dalkia) was contracted to build a combined heat and power plant for a paper mill belonging to the other (Celltech). It was agreed that Celltech would pay 174 monthly instalments under the contract and that in the event of non-payment, Dalkia would be entitled to £3m for the termination of the contract. Celltech failed to pay the last three instalments because of financial problems. Dalkia regarded this as a termination of the contract and went to court to obtain the £3m.
In assessing the claim, the High Court considered that the following were of significance in deciding if a breach of contract was material:
- the impact of the breach on the innocent party compared with the position it would be in had the contract been fully performed;
- whether the breach was intentional and not due to a misunderstanding or administrative error;
- whether the amount involved was neither minimal nor trivial; and
- the circumstances in which the breach occurred.
In a recent case, a firm which continually paid one of its subcontractors late was considered to have breached its contract with the subcontractor.