Delta Petroleum (Caribbean) Ltd (Appellant) v British Virgin Islands Electricity Corporation (Respondent) (British Virgin Islands)
Case ID: JCPC 2019/0029
Jurisdiction: The Court of Appeal of the British Virgin Islands
(1) Whether the doctrine of waiver by election was applicable to the Appellant’s situation and conduct; (2) whether the agreement barred the application of the waiver doctrine; (3) whether the requirements of the doctrine were satisfied on the facts; (4) whether the Appellant was entitled to rely on the closure as a basis for performance to relief or to terminate the agreement; (5) whether the liquidated damages clause applied and, if so, whether it was a penalty clause; and, (6) whether the Appellant complied with the preconditions required to benefit from the three grace periods in the liquidated damages clause.
In 2014 the Appellant agreed to supply the Respondent with fuel for a 4-year period. A clause was inserted into the agreement for the Appellant’s benefit in the event of the closure of its source of fuel. Such a closure occurred, and the Appellant sought to rely on that clause to obtain performance relief and terminate the agreement. The Respondent says that the Appellant is not entitled to rely on the clause, and issued proceedings for specific performance and liquidated damages. The Appellant counterclaimed for repudiatory breach. At first instance there was judgment in favour of the Respondent with the Appellant’s counterclaim dismissed. The Court of Appeal dismissed the Appellant’s appeal, save as to certain aspects of the Respondent’s liquidated damages claim. The Appellant now appeals to the Judicial Committee of the Privy Council.
Delta Petroleum (Caribbean) Ltd
British Virgin Islands Electricity Corporation
Lord Kerr, Lord Briggs, Lord Sales, Lord Hamblen, Lord Leggatt
Hearing start date
6 May 2020
Hearing finish date
7 May 2020
|06 May 2020||Afternoon session|
|07 May 2020||Afternoon session|