Dear Sean and David
It is interesting that Lord Sumption has now pronounced extra-judicially on construction, but has held back from ex cathedra statements. No real surprises here.
I especially relish the irony that something has gone wrong with the language on page 9, where I think (given the context, common sense, and some intuition as to his likely intentions) he meant to “reassess”
and not “reassert” the flexibility of language!
The curious omission here is
BNY Mellon Corporate Trustee Services Ltd v LBG Capital No 1 plc (the Lloyds Bank Bonds
case) [2016] UKSC 29, [2016] UKSC 29, [2016] Bus LR 725, [2016] 2 Lloyd’s Rep 119, [2016] 2 All ER (Comm) 851
where the majority of the Supreme Court in June 2016 upheld the Court of Appeal, using lots of context and common sense a la Hoffmann (and bailing out the bank from bad bargains and its creaky drafting), but I think were rather
sheepish about doing so. Lord Sumption was at least consistent in dissenting.
Best regards
Gerard
|
|||||||
|
|||||||
|
|||||||
 |
|
||||||
|
This e-mail and any files transmitted with it are confidential and legally privileged. This e-mail is intended to be read only by the addressee. If you are not the intended recipient, you are notified that any review, dissemination or copying of this e-mail is prohibited and that privilege has not been waived. Although this e-mail and any attachments are believed to be free of any virus, or other defect, which might affect any computer or system into which they are received and opened, it is the responsibility of the recipient to ensure that they are virus free and no responsibility is accepted by Guildhall Chambers, or any barrister that conducts business as member of Guildhall, for any loss or damage from receipt or use thereof. If you have received this e-mail in error, please notify the sender by replying by email or by telephone (+44 (0)117 930 9000) and then delete the e-mail. |
|||||||
From: THOMAS, SEAN R. [mailto:sean.thomas@durham.ac.uk]
Sent: 15 May 2017 09:27
To: David McLauchlan <David.McLauchlan@vuw.ac.nz>; obligations@uwo.ca
Subject: RE: Lord Sumption on Contract Interpretation
Lord Sumption: “The first and main point to make is that the language of the parties’ agreement, read as a whole, is the only direct evidence of their intentions which is admissible. I would certainly not advocate literalism as an approach
to construction. But it is a fallacy to say that language is meaningful only in relation to some particular background. Most language and all properly drafted language has an autonomous meaning. I find the belittling of dictionaries and grammars as tools of
interpretation to be rather extraordinary. Language is a mode of communication. Its efficacy depends on the acceptance of a number of conventions that enable people to understand each other. Dictionaries and grammars are simply reference books which record
these conventions. If we abandon them as the basic tools of construction, we are no longer discovering how the parties understood each other. We are simply leaving judges to reconstruct an ideal contract which the parties might have been wiser to make, but
never actually did.”
Scalia J lives!
(For anyone who cares, P A Rubin, ‘War of the Words: How Courts Can Use Dictionaries in Accordance with Textualist Principles’ (2010) 60 Duke LJ 167 provides a reasonable enough overview)
[I’m clearly awaiting an influx of exam scripts, which no doubt will provide novel and amusing interpretations and applications of the contractual interpretation case-law]
Yours,
Sean.
Dr Sean Thomas
Associate Professor and Undergraduate Admissions Officer
Durham Law School
Durham University
Palatine Centre
Stockton Road
Durham DH1 3LE
e: sean.thomas@dur.ac.uk
t: +44 (0)191 3346849
w: https://www.dur.ac.uk/law/staff/?id=14090
From: David McLauchlan
Sent: 14 May 2017 00:14
To: obligations@uwo.ca
Subject: Lord Sumption on Contract Interpretation
List members who have an interest in the law of contract, and particularly contract interpretation, will find much food for thought in Lord Sumption’s
Harris Society Annual Lecture, “A Question of Taste: The Supreme Court and the Interpretation of Contracts”, delivered at Keble College, Oxford, last Monday (available at
https://www.supremecourt.uk/news/speeches.html).
The lecture is entertaining and provocative but, unfortunately, it contains many grievous errors. Not only does it distort Lord Hoffmann's approach to interpretation and implication of terms, but it misrepresents the facts
and reasoning in the leading cases of Chartbrook and Rainy Sky. And, oh yes, some of the things his Lordship says are inconsistent with what he was party to in the Supreme Court’s recent decision in
Wood v Capita. There is much more to be said but, in the meantime, as Jason would say, happy reading!
David McLauchlan