Ian Pease identifies the cracks in Chartbrook
Chartbrook Ltd v Persimmon Homes Ltd & Others [2009] UKHL 38, [2009] All ER (D) 12 (Jul) concerns the proper construction of the terms of a contract.
It represents the most important case in this area since Bank of Credit and Commerce International SA v Ali and Others [2002] 1 AC 251 which itself built upon Investors Compensation Scheme Ltd (ICS) v West Bromwich Building Society [1998] 1 All ER 98, Lord Hoffmann having given judgments in both.
Superficially Chartbrook appears to be “business as usual” and a fairly conventional endorsement of the line on contractual construction that the House of Lords had taken in those former cases. However, this may be a misconception, for the case contains some obiter remarks from three of the judges that tend to indicate that a change is in the offing.
The most important aspect of the case is the extent of the context and background that the court can legitimately take into account when construing contract terms and, in particular, whether it is ever right to have recourse
