Rather with you. What do we have a Supreme Court for? And the point can matter in international transactions, where people choose English law to govern even if they don't have to and (one suspects) would like to have some answers.

Andrew

Dear all,

The UKSC handed down a judgment on MWB v Rock Advertising this morning: https://www.supremecourt.uk/cases/docs/uksc-2016-0152-judgment.pdf

On a quick read of the decision, the UKSC have completely dodged any of the wider consideration issues raised by MWB and decided the case solely on the basis of the no oral modification clause being effective.

Whilst the decision appears to be sensible on the NOM front, a real shame that the UKSC didn’t take up the opportunity to tackle consideration. Lord Sumption at [18] says this: 

"That makes it unnecessary to deal with consideration. It is also, I think, undesirable to do so. The issue is a difficult one. The only consideration which MWB can be said to have been given for accepting a less advantageous schedule of payments was (i) the prospect that the payments were more likely to be made if they were loaded onto the back end of the contract term, and (ii) the fact that MWB would be less likely to have the premises left vacant on its hands while it sought a new licensee. These were both expectations of practical value, but neither was a contractual entitlement. In Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1, the Court of Appeal held that an expectation of commercial advantage was good consideration. The problem about this was that practical expectation of benefit was the very thing which the House of Lords held not to be adequate consideration in Foakes v Beer (1884) 9 App Cas 605: see in particular p 622 per Lord Blackburn. There are arguable points of distinction, although the arguments are somewhat forced. A differently constituted Court of Appeal made these points in In re Selectmove Ltd [1995] 1 WLR 474, and declined to follow Williams v Roffey. The reality is that any decision on this point is likely to involve a re-examination of the decision in Foakes v Beer. It is probably ripe for re- examination. But if it is to be overruled or its effect substantially modified, it should be before an enlarged panel of the court and in a case where the decision would be more than obiter dictum”

Fans of the illegality saga in the UKSC will be familiar to this type of reasoning. And given how infrequently the doctrine of consideration comes before the HL/UKSC, what a wasted opportunity.

Happy reading!

All best,

Judith

Judith Skillen 

Teaching Fellow

The Dickson Poon School of Law

King’s College London

London, WC2R 2LS

-1.15 SHEW

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