Unilateral Agreement in UK Law

In his judgment Sir Peter Singer (para 48) held that, save where parties expressly chose to opt out (or attempt to do so) of the sharing concept to which couples subscribe when they marry by making a pre-nuptial agreement, the speeches of Baroness Hale and Lord Mance, in so far as they contemplated unilateral finances in a short marriage, dual career, case, were not consistent with the principles developed since the decision in White.

Looking at the matter apart from authority, I can see no reason why, if an agreement between two persons confers on one of them alone the right to refer the matter to arbitration, the reference should not constitute an arbitration. There is a fully bilateral agreement which constitutes a contract to refer. The fact that the option is exerciseable by one of the parties only seems to me to be irrelevant.

At the hearing I drew the parties' attention to a recent article of Professor Briggs 34 which further discusses these (amongst other) issues and which, for my part, I find as persuasive as it is characteristically robust. Thirdly, the agreement of a party is not bilateral or contractual, but unilateral.

The arbitration clause itself creates no obligation upon either party to do or refrain from doing anything unless and until the event occurs, and even then the mutual obligations that arise are in relation to the particular claim that constitutes the event. The primary obligations of both parties that arise then are contractual, whether express, or implied by statute or included by necessary implication in the arbitration clause.

When examined in that way, Mr Cobbe's case seems to me to fail on the simple but fundamental point that, as persons experienced in the property world, both parties knew that there was no legally binding contract, and that either was therefore free to discontinue the negotiations without legal liability'that is liability in equity as well as at law, to echo the words of Lord Cranworth quoted in para 53 above.

The general rule at common law is that if one party has made a mistake as to the terms of the contract and that mistake is known to the other party, then the contract is not binding. The reasoning is that although the parties appear, objectively, to have agreed terms, it is clear that they are not in agreement. Some of the cases talk of such a contract being “void”, but I think it is clearer to say that there was never a contract at all.

If ever a party was entitled to assume that its opponent knew what it was doing, it was VIC in its negotiations with one of the country's largest construction and development enterprises. In my judgment the mistake made by Wimpey was a result of their own corporate neglect for which VIC bore no legal or – so far as it matters – moral responsibility.