Contractual Interpretation: Do Judges Sometimes Say One Thing and Do Another?

• Author: Sir Geoffrey Vos
• Position: Chancellor of the High Court of England and Wales
• Pages: 1-13

1

CONTRACTUAL INTERPRETAT ION: DO JUDGES

SOMETIMES SAY ONE THING AND DO ANOTHER?

S G V*

A

is article questions whether the factual situation that arose in ICS v

West Bromwich Building Society would be decided the same way today. e

developments in the law of contractual interpretation are tracked through

Chartbrook v Persimmon Homes and Lord Homann’s retirement . It is suggested

that there has been a sea change in Rainy Sky, Arnold v Britton, and Wood v

Capita, even though those cases sug gest that they are about continuity. e change

of approach is compared with the developments taking place at the same time in

the law of implied terms and in the use of mutual mistake rectication found

in Daventry DC v Daventry & District Housing. e conclusion is that it may

be better to interpret a written agreement in accordance with what the parties

obviously agreed judged from the other terms of the contract and the admissible

factual matrix, rathe r than rectifying a contract for mutual mistake to say exactly

the opposite of what one of those parties would or could ever agree. e dierence

of approach between common law and equity judges is explored.

I. I

It is perhaps obvious that many people say one thing and do another, and

they do not say exactly what they mean. is may be what Lord Homann

was speaking about when he said in Mannai Investments Co Ltd vEagle Star

Life Assurance Co Ltd that:1

If one meets an acquaintance and he says “And how is

Mary?” it may be obvious that he is referring to one’s wife,

even if she is in fact called Jane. One may even, to avoid

embarrassment, answer “Very well, thank you” without

drawing attention to his mistake.

1 Mannai Investmen ts Co Ltd v Eagle Star Life Assuran ce Co Ltd [1997] AC 749 [Mannai].

*Chancellor of the High Court of England and Wales. is article is based on a lecture

delivered to the Hong Kong judiciary on 16 October 2017, and as a Hotung Fellowship

lecture at the Unive rsity of Canterbury on 18 October 2017.