Don't look back in anger: termination of commercial contracts

Unless you have been living half the world away, you will not have escaped the recently announced Oasis reunion and the subsequent frenzy for tickets to their Oasis Live '25 Tour next July/August.

Not lucky enough to beat Ticketmaster's waiting rooms, queues and dynamic pricing, little by little I have tried to console myself with the possibility that the Gallagher brothers' reconciliation will be short-lived and, by July 2025, the tour will be cancelled.

In recent years, for a variety of reasons, there has been an increasing trend of gigs/tours being cancelled, one of the most high-profile being last month's cancellation of the Vienna leg of Taylor Swift's Eras Tour.

Against that backdrop, this article considers the litigation risks a party cancelling a tour – or indeed any party contemplating terminating any commercial contract – should consider to minimise chances of looking back in anger and what parties can do to protect themselves from such risks.

Where did it all go wrong? How to cancel

Although not a popular proposition, it is not altogether an impossibility that by July 2025 Noel will have had enough of Liam, or vice versa, and either brother will be looking to cancel the anticipated reunion.

Rather than leave matters up in the sky, the first consideration for either brother, after perhaps looking at the terms of any event cancellation insurance policy, should be the terms of contracts with promoters, management and selling agents. Do the contracts contain termination clauses and, if so, what are their conditions? Can a breach be cited that triggers the clause?

And what if there is no termination clause? In such a scenario, parties should consider whether the contract can be terminated for repudiatory breach at common law. A repudiatory breach is one that goes to the heart of the contract and deprives the other party of substantially all of the benefit of the contract. That is a relatively high hurdle and is a fact-specific question which has been the subject of much litigation. There are numerous nuanced judgments which provide helpful guidance on whether breaches of contract are repudiatory breaches, but this question is often a battleground.

Remedies

Parties should again first look to the contract for express provisions in respect of remedies.

In terms of the common law, the injured party should be able to claim damages so long as they are able to demonstrate that the breach caused a loss and that the loss is not too remote from the breach. In terms of the level of damages, they are intended to put the injured party in the position in which they would have been had the breach not occurred so the damages would, in this scenario, be significant.

Takeaways/lessons

D'you know what I mean? Importance of clearly drafted clauses

As with all drafting, clear wording is required when drafting termination clauses. Depending on the nature of the contract and the bargaining power of the contracting parties, you should consider including:

• a definition of "material" to avoid a court making a determination based on the masterplan, including not only the contract itself but also the nature of the breach, any explanation for it and its impact;
• a provision enabling a party to slide away in the event of an insolvency-related event;
• a provision enabling termination for convenience which would enable a party to terminate absent any breach;
• clear notice requirements; and
• a term providing for compensation in the event of early termination/non-completion.

Stop crying your heart out: correctly exercising the right to terminate/risk of wrongful termination

Some might say, in order to avoid an invalid and ineffective notice, that it is critical to abide strictly with contractual requirements for termination notices, which may provide, among other things, to whom communication should be made, how many notices are required and whether a cure period applies.

Termination should not be undertaken lightly. If a party purports to terminate without the right to do so, this may give rise to the counterparty terminating, with a claim for damages. Equally, any error in terminating may result in the loss of remedies or lock a party into a contract they no longer wish to perform.

Insurance

Finally, planning a successful event involves many moving parts, so having event insurance (a specialist policy designed to safeguard the event or multi-event series you have organised against a range of risks) can help to cover the associated risks, including cancellation.

If you have any questions, please contact Philip Knight or Sarah Wardell.