It remains unclear what will constitute a legitimate interest. However, in one of the more recent authorities that discuss this criterion, Ocean Marine Navigation Ltd v Koch Carbon Inc (The Dynamic) [2003] EWHC 1936 (Comm); [2003] 2 Lloyd's Rep. 693, Simon J said that it will only be in extreme cases that the innocent party will not have a legitimate interest in affirmation. He stated:
(i) The burden is on the contract breaker to show that the innocent party has no legitimate interest in performing the contract rather than claiming damages.
(ii) This burden is not discharged merely by showing that the benefit to the other party is small in comparison to the loss to the contract breaker.
(iii) The exception to the general rule applies only in extreme cases where damages would be an adequate remedy and where an election to keep the contract alive would be unreasonable.