One has to wonder at Lord Sumption's example, derived from the diaries
of Samuel Peeppee's. As entertaining as this story is, it is worlds
away from the circumstances surrounding the preparation of ordinary
commercial contracts. Further, is it really right to say as I read
Lord Sumption to, that as the law stands in an interpretation dispute
concerning that contract the Court would have admitted information
which reasonable parties would have known but which the parties who
actually entered into the contract being unreasonable did not know as
an aid to interpret the contract?

Kind regards

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On 5/15/17, David McLauchlan <David.McLauchlan@vuw.ac.nz> wrote:
> Of course, Lord Hoffmann never said that words have no meaning independently
> of context. Neither did he belittle dictionaries and grammars as tools of
> interpretation. As is apparent from his judgment in Mannai Investment, he
> accepted that words do have dictionary or ordinary meanings. His main point
> was that it was important to:
>
> “distinguish between the meanings of words and the question of what would be
> understood as the meaning of a person who uses words. The meaning of words,
> as they would appear in a dictionary, and the effect of their syntactical
> arrangement, as it would appear in a grammar, is part of the material which
> we use to understand a speaker’s utterance. But it is only a part; another
> part is our knowledge of the background against which the utterance was
> made.”
>
> Furthermore, he rightly stressed in his leading judgments that there will
> usually be no answer to the solution derived from giving the words their
> ordinary or conventional meaning. That is the meaning that the document will
> convey to a reasonable person unless, for example, there is something in the
> background to suggest that something went wrong with the language and
> therefore that the parties can reasonably be taken to have intended a
> different meaning. Cf his judgment in Bank of Credit and Commerce
> International SA v Ali [2002] AC 251, [39] (“the primary source for
> understanding what the parties meant is their language interpreted in
> accordance with conventional usage”). He was the dissenting judge in this
> case and criticised the majority (at [37]) for giving “too little weight to
> the actual language and background” of the document in question.
>
>
> David McLauchlan
>
>
>
> ________________________________
> From: THOMAS, SEAN R. <sean.thomas@durham.ac.uk>
> Sent: Sunday, 14 May 2017 8:26 p.m.
> To: David McLauchlan; 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<mailto:David.McLauchlan@vuw.ac.nz>
> Sent: 14 May 2017 00:14
> To: obligations@uwo.ca<mailto: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
>
>
>