This guide is maintained as a current resource for September 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
Discover how to claim for non‑performance of contracts in England and Wales. This comprehensive guide explains what non‑performance is, legal remedies including damages and specific performance, practical steps to make a claim, time limits and key considerations for resolving disputes.
A contract creates legally enforceable obligations. When one party fails to fulfil its contractual duties, this is known as non‑performance and can give rise to a legal claim. In England and Wales, non‑performance may involve late delivery, defective services, failure to pay, or complete refusal to perform. Understanding your rights, available remedies, and the legal process for making a claim helps individuals and businesses address non‑performance effectively. This article explains how to recognise non‑performance, the steps to pursue a claim, remedies available, time limits, and practical considerations for resolving disputes.
What Non‑Performance Means in Contract Law
Under English contract law, each party to a contract is obliged to perform its express obligations and any terms implied by law or custom. Non‑performance occurs when a party:
- Fails to fulfil its obligations at all;
- Performs inadequately or defectively;
- Refuses to perform; or
- Anticipates that it will not perform before the performance date.
Non‑performance is a form of breach of contract and gives the other party the right to seek remedies. Whether performance has occurred is assessed by comparing what was done with what the contract required, including timing, standard and completeness of performance.
Identifying Non‑Performance
You may have grounds to make a claim if:
- A supplier fails to deliver goods or services by the agreed date;
- Work is carried out but does not meet contractual standards;
- A customer fails to pay on time;
- A party clearly indicates they will not perform (anticipatory breach).
Non‑performance may be total (complete failure) or partial (some obligations met but others unmet). Both can support a claim, although the appropriate remedies may differ.
Steps to Make a Claim for Non‑Performance
1. Confirm Contract Terms
Start by reviewing the contract thoroughly:
- Identify the specific obligations and performance deadlines;
- Note whether the contract specifies that time is of the essence (making timely performance essential);
- Check for clauses that govern disputes, notice requirements and remedies.
A clearly drafted contract strengthens your position if legal proceedings are needed.
2. Communicate With the Other Party
Begin with a formal written notice to the other party outlining:
- What obligations have not been performed;
- How the non‑performance constitutes a breach;
- What remedy you expect (performance, compensation, termination);
- A reasonable time frame for response or compliance.
Providing notice can persuade the other party to resolve the issue without court action and can be a necessary procedural step, especially if the contract contains dispute resolution requirements.
3. Consider Alternative Dispute Resolution
Before issuing formal proceedings, you may pursue Alternative Dispute Resolution (ADR):
- Mediation involves a neutral third party assisting you and the other side to negotiate a resolution;
- Arbitration may be required if the contract includes an arbitration clause.
ADR can be quicker, less formal and less costly than litigation. Many commercial contracts require negotiation or mediation before going to court.
4. Issuing Court Proceedings
If ADR fails, you may bring a claim in the County Court for most consumer and small business disputes or the High Court for higher‑value or complex matters. The court process generally involves:
- Part 7 claim form: Setting out your claim for breach due to non‑performance;
- Particulars of claim: Detailed evidence of the contract, breach and losses;
- Disclosure and evidence: Documents and witness statements supporting your case.
To succeed, you must show: (a) a valid contract existed; (b) the other party failed to perform their contractual duties; (c) you suffered loss as a result; and (d) your losses were caused by the breach and were reasonably foreseeable.
Remedies for Non‑Performance
Damages (Financial Compensation)
Damages are the most common remedy and aim to place you in the position you would have been in had the contract been properly performed. This is known as the expectation interest. Damages may include:
- Compensatory damages to cover direct loss;
- Consequential damages for foreseeable indirect losses;
- Liquidated damages if pre‑agreed in the contract.
You also have a duty to mitigate loss, meaning you should take reasonable steps to reduce the impact of the breach.
Specific Performance
Specific performance is an equitable remedy where the court orders the breaching party to carry out its contractual obligations rather than paying money. This is most often available when monetary damages are inadequate - for example, in contracts involving unique goods or property where compensation would not be sufficient. Specific performance is discretionary and not awarded in every case.
Termination and Other Reliefs
Where non‑performance is serious, you may be entitled to repudiate (terminate) the contract and seek damages for losses caused by the breach. Termination allows you to end the contractual relationship and stop further obligations.
Other equitable remedies include injunctions, which can prevent repeated breaches by ordering a party not to act in a certain way or, in limited cases, to act.
Time Limits for Claims
Under the Limitation Act 1980, most claims for breach of contract due to non‑performance must be started within six years from the date the breach occurred or when the non‑performance was or should have been discovered. Failure to act within the limitation period generally extinguishes your right to recover. Early action preserves your legal options.
Practical Considerations and Risks
Document Everything
Maintain clear records of the contract, performance schedules, correspondence, notices and attempts to resolve the dispute. Courts place significant weight on documentary evidence.
Expert Legal Advice
For complex disputes or high‑value claims, seek qualified legal advice to assess your case, draft legal documents and guide you through court procedures.
Commercial Impact
Weigh the commercial implications of pursuing a claim. Litigation can be time‑consuming and costly. Negotiation or ADR may preserve business relationships and reduce expense.
Common Questions About Non‑Performance Claims
Q: Can I stop the other party from performing elsewhere?
A: The law does not prevent a party from performing other contracts, but you can seek remedies for losses caused by their failure to fulfil your contract.
Q: What if the contract has a force majeure clause?
A: A force majeure clause may excuse non‑performance for events outside control, but it must be clearly drafted and applicable. Absent such a clause, courts rarely excuse performance simply because it is difficult.
Q: Can partial performance give rise to a claim?
A: Yes. Partial performance may still entitle you to damages for losses, and in some cases you can recover payment on a quantum meruit basis if the other party has accepted the benefit.
Key Takeaways
Non‑performance of a contract in England and Wales gives rise to a breach and entitles the innocent party to remedies such as damages, specific performance, termination and injunctions. To make a claim, confirm the contractual terms, send formal notices, consider ADR, and if necessary pursue legal action in the appropriate court. Remedies aim to compensate you or, in limited cases, compel performance. Timely action, clear evidence and thoughtful strategy enhance the likelihood of a successful outcome when addressing contractual non‑performance.
