MWB v Rock revisited : what place equity?

Lord Justice Henderson has granted permission on the papers to appeal the decision of the Deputy High Court Judge in UK Learning Academy Ltd v Secretary of State for Education  [2018] EWHC 2915 (Comm). 

Concerned with non-oral modification clauses (‘NOMs’), the appeal is likely to decide the correct test or standard to be applied where one contracting party alleges that the other is estopped from relying on such a clause.  In particular, the case will consider whether the obiter dicta remarks of Lord Sumption in MWB v. Rock Advertising [2018] 2 WLR 1603 that there needed to be an “unequivocal representation that the variation was validly notwithstanding its informality” and “something more … than the informal promise itself…” in fact represents the law.

Whereas MWB v. Rock determined that NOMs can preclude oral variations, UKLA v Secretary of State will decide whether they also preclude claims based on estoppel.

Clifford Darton QC and George Woodhead are acting for the Appellant instructed by Mr. Kush Verma of Avisons Solicitors.  The first instance judgment can be found here.