Stephen Twaites Solicitor
IT’S ALL WRITTEN DOWN...
A
rguably 2015 saw a move away from judicial activism with the courts preferring to apply strict rules of interpretation to commercial agreements.
First, a couple of decisions of the UK Supreme Court that tackle two of the fundamentals of contract law. In Arnold v Britton and others (2015) UKSC 36, we found out that the courts will from now on prefer ‘clear language over common sense’ – refusing to depart from the normal everyday meaning of words used even where the financial consequences of such application may result in the term being a very imprudent one for one of the parties. Where the words used are clear and unambiguous, the courts
14
SYSTECH INSIGHTS ▶ edition 2
will now apply them even if the parties have made a bad bargain or did not intend the consequences which flow from their use. If the words are ambiguous the courts will now investigate what the parties may have intended in a much more restricted way. They will look primarily at the rest of the contract itself and will be much more constrained in what use they make of other non-contractual material, for example, the pre-contract negotiations. It’s always interesting when the highest court gets to reconsider a test that it had pronounced on nearly 100 years beforehand and the decision in Cavendish Square Holding BV v Talal El Makdessi and ParkingEye Ltd v Beavis (2015) UKSC 67 was perhaps one of the most eagerly anticipated during 2015. Although the Supreme