Courts continue to wrestle with the thorny issue of contract construction, as Ian Pease reports
Construing the meaning of contractual wording is the bread and butter of the civil courts. Nevertheless, it has given the courts difficulties over the years, particularly in relation to which documents can be looked at to set the words used in their correct context.
In 2009 there was a major re-affirmation of the state of play, by Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd [2009] 3 WLR 267, a judgment that I commented upon in “The edifice begins to crack”. Lord Hoffmann drew as widely as possible the ambit of the “matrix of fact”. Even the rule of construction that rendered inadmissible evidence of pre-contractual negotiations appeared to be on the wane. Nevertheless, given that the aim of the exercise is to assess the objective common intent of the parties, looking for a matrix or goal that is wider than the particular contract under consideration has been completely out of the question. However, even that sacred cow arguably now needs careful reconsideration.
Traditional analysis works well in
