If someone has broken the terms of a contract with you, your first question is likely: what can I do about it? And the follow-up is usually: should I go to court?
The short answer is that court proceedings should be a last resort. Most contractual disputes are resolved through direct negotiation or alternative methods of dispute resolution. But there are situations where litigation becomes the only realistic option — and knowing when you have reached that point can save you time, money, and frustration.
What Is a Breach of Contract?
A contract exists whenever two or more parties exchange promises that they intend to be legally bound by. It does not need to be written down — verbal agreements can be just as enforceable. The key elements are a mutual exchange of promises, an intention to be bound, and reliance on one another to perform.
A breach of contract occurs when one party fails to perform an obligation as promised. That could mean delivering goods late, providing a substandard service, refusing to carry out part of the agreement, or failing to perform the contract at all.
What Are the Different Types of Breach?
Contracts come in all shapes and sizes — from acquiring a business or shares in a company, to purchasing or supplying goods and services, to establishing a partnership or joint venture. But regardless of the type of contract, breaches generally fall into four categories.
Defective or Incomplete Performance
This is the most common type of breach. One party carries out their obligations, but not to the standard or scope agreed. For example, a supplier delivers goods that do not meet the agreed specification, or a contractor completes a project but leaves key elements unfinished.
Late Performance
The obligations are fulfilled, but not within the agreed timeframe. Whether late performance amounts to a serious breach depends on the contract. In some agreements, time is explicitly stated to be “of the essence,” meaning any delay is treated as a fundamental breach. In others, a reasonable delay may not justify termination but could still give rise to a claim for losses caused by the delay.
Refusal to Perform
One party communicates — whether explicitly or through their conduct — that they will not carry out certain obligations under the contract. This is sometimes referred to as an anticipatory breach, because the breach occurs before performance is actually due.
Total Failure to Perform
The most serious category. One party simply does not perform the contract at all. This will almost always amount to a repudiatory breach, giving the innocent party the right to terminate the contract and claim damages.
Not all breaches carry the same weight. Some are minor and easy to fix — a short delay or a small shortfall in delivery, for example. Others are fundamental and can undermine the entire purpose of the contract. The distinction matters, because the severity of the breach determines your options for responding to it.
Think you may be dealing with a breach of contract? Contact our commercial litigation team to discuss your situation and understand your options.
When Should You Consider Court Proceedings?
Court should be the last resort — but sometimes it is the right one. Litigation typically becomes necessary when direct negotiation and other forms of dispute resolution have been tried and have not produced a settlement. The most common situations where court proceedings become appropriate include the following.
Significant financial loss without adequate compensation. If you have suffered a substantial financial loss because of the breach, and the other party has not offered reasonable compensation, you may need to pursue a damages claim through the court to recover what you are owed.
A dispute over whether a breach has occurred. Sometimes the disagreement is not about the consequences of a breach, but about whether there has been a breach at all. The parties may disagree about what the terms of the contract were, what those terms mean, or whether the conduct in question falls short of what was agreed. Where the parties cannot resolve that disagreement between themselves, the court may need to decide.
Both parties accuse each other of breach. Disputes become significantly more difficult to settle when each side believes the other is at fault. In these situations, the positions are often entrenched and a neutral decision from the court may be the only way to break the deadlock.
Failure to remedy a breach. If the party in breach has had the opportunity to put things right — for example, by completing an unfinished delivery or making an overdue payment — but has failed to do so, court proceedings may be the only way to compel action or secure compensation.
A repudiatory breach. This is the most serious type of breach. It occurs when one party communicates that they will not perform their obligations at all, acts in a way that makes performance impossible, or commits a breach so fundamental that it undermines the entire contract. A repudiatory breach gives the innocent party the right to terminate the contract and claim damages.
You need a remedy that only the court can provide. Some remedies are only available through the court. If you need an injunction to prevent further breaches from occurring, or an order for specific performance requiring the other party to fulfil their obligations, you will need to issue proceedings.
Unsure whether your dispute warrants court proceedings? Speak to Andrew Farrell and the litigation team for practical, commercial advice on your next steps.
What Is Pre-Action Conduct and Why Does It Matter?
Before you can issue court proceedings, the court expects you to have taken reasonable steps to try to resolve the dispute. These steps are set out in a series of Pre-Action Protocols, and failing to follow them can have serious consequences.
What Do the Protocols Require?
The specific requirements depend on the subject matter of your claim, but the common thread across all Protocols is the same. The claiming party must send a detailed letter of claim setting out their case. The defending party must respond with a detailed letter of response. Both sides should exchange relevant information and documentation. And both sides should attempt to settle the dispute — which may include mediation — before proceedings are issued.
What Happens If You Do Not Comply?
The court takes pre-action conduct seriously. If you issue proceedings without following the relevant Protocol, the court can impose sanctions. The most common consequence is an adjustment to the costs order at the end of the case — meaning you could win your case but recover significantly less of your legal costs than you would have done had you complied. In some cases, the court may stay (pause) proceedings to allow the Protocol steps to be completed.
Non-compliance can prove very costly. It is always worth taking the time to follow the Protocol properly before issuing a claim, even if you are confident that the dispute will ultimately need to be resolved in court.
How Our Commercial Litigation Solicitors Can Help
Whether you are dealing with a minor contractual dispute or a serious breach that threatens your business, getting the right legal advice early makes a significant difference. We can help you assess the strength of your position, understand the remedies available to you, and decide on the most effective strategy — whether that involves negotiation, mediation, or court proceedings.
We handle breach of contract claims for businesses and individuals across a wide range of sectors. Where litigation is necessary, we will guide you through the process from pre-action steps to trial. Where it can be avoided, we will work with you to find a commercial, cost-effective resolution.
Facing a breach of contract? Contact Andrew Farrell and the commercial litigation team to discuss your case. Call us on 0161 337 4646 or complete the form below to arrange an initial discussion.
About the Author
Andrew Farrell is the Office Managing Partner and leads the Manchester litigation team. A solicitor since 1998 (SRA ID: 42723), he is an experienced commercial litigator handling a wide variety of business disputes, including professional negligence, breaches of contract, directors’ duties, shareholders’ rights, sale and supply of goods and services, construction disputes and fraud.
Andrew has represented clients in court proceedings up to and including the Supreme Court, but is also a strong advocate for alternative dispute resolution — particularly mediation — to achieve commercial, cost-effective solutions.
