Has the Rainy Sky Dried Up? Arnold v Britton and Commercial Interpretation
| DOI | 10.3366/elr.2016.0323 |
| Published date | 01 January 2016 |
| Pages | 71-76 |
| Date | 01 January 2016 |
| Author |
For some time now a quiet war has been going on. On one side of the argument stand commercial contract draftsmen, doing their best to incorporate parties' agreements in their documents while accepting that client-driven amendments may arise at any time for tactical, commercial, or other reasons. They are committed to, and advise on, the proposition that, once complete, the document says what it says. If one party has not thought of something which may, as things turn out, give the other an advantage, so be it. Barring extreme circumstances (for instance, those in which the officious bystander can say “yes, of course” to an implied term) the words are inviolate.
On the other side of the battlefield stands a smaller (but more powerful) group. These are courts which feel able to rule on what parties “must have” or “must be taken to have” intended many years ago, whatever they wrote. If contract wording appears to provide a shield, they are equipped with a sword more than capable of penetrating that defence in the form of “business common sense”.
Those favouring the business common sense weaponry have been in the ascendency. The most quoted case was
[2011] UKSC 50, [2011] I WLR 2900.
which majored on that topic. However, decisions remain contentious. In both[2011] UKSC 56, 2012 SC (UKSC) 240.
See
If venturing into the hypothetical, should the question not have been: what would parties have agreed had they thought of the point? Assuming that the Supreme Court is not infallible, merely final,
Comment from the Bench during the hearing of
The alternative argument belatedly presented by Stewart Milne (at para 23) had been supported at a very early stage by the other party.
Is the recent Supreme Court decision in
[2015] UKSC 36, [2015] 2 WLR 1593.
a biblical shaft of light breaking through the clouds (and dispersing the Rainy Sky) or, perhaps like the Scottish weather, do other factors suggest it is only a brief sunny interval before the skies darken againAt first blush the circumstances provide fertile ground for the application of a broad “business common sense” approach that departs from literal words. A chalet park operated ninety-nine year leases to individual chalet occupiers. Common services were provided for general maintenance and upkeep of the park as a whole, chalet occupiers being required to pay for that upkeep. Some complications arose from the fact that, as it eventually emerged, not all occupiers had precisely the same common charges provisions. For present purposes, attention will focus on those occupiers whose lease terms were the focus of the appeal.
Each chalet owner was to pay a “proportionate part” of the cost of maintaining the park as a whole.
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