University of Kent Open Access Journals
Not a member yet
879 research outputs found
Sort by
Ancestral Demon of a Grieving Bride (Sy Hoahwah)
No full textIn this place-oriented collection, Hoahwah forces the reader to reconcile the blurring of assumed borders between natural and unnatural, life and death, and more as he defines the hybrid body/bodies of the speaker against and within liminal landscapes: “I sat here long enough / to become an altar / where the abandoned monsters come to pray” (24). Pulling from epic and Gothic traditions, Hoahwah’s new collection of poetry allows us brief visions of an impossibly shifting narrator—one we must trust fully as we follow the speaker to the outskirts of town, down a logging trail, and into Hell, itself
RIGHT TO STRIKE
Get PDFStriking, overtime bans and refusing to carry out certain tasks[1] are collective forms of actions that can arise from workplace disputes. These industrial actions are of fundamental importance: the temporary halt in work production leverages a demand to enforce workers’ rights. Despite this, the UK does not recognise the legal right to withdraw labour. Instead, the UK’s “right to strike” is said to depend on a complex statutory scheme[2].
This article will analyse a variety of sources, “statutes such as TULRCA 1992, the common law, Convention rights, and relevant case law[3]”, to determine whether the UK’s “right to strike” “is a classic instance of a ‘legislated’ right[4]” or if it is merely a “slogan/legal metaphor[5]”.
[1] Hugh Collins, Aileen McColgan and Keith D Ewing, Labour Law (2nd edn, Cambridge University press 2019) pg.706.
[2] Alan Bogg and Ruth Dukes, 'Statutory Interpretation and The Limits of a Human Rights Approach: Royal Mail Group Ltd V Communication Workers Union' (2020) 49(3) Industrial Law Journal pg.478.
[3] Ibid, pg.478.
[4] Ibid, pg.478.
[5] Metrobus v UNITE [2009] EWCA Civ 829 (Maurice Kay LJ).
-
‘In truth, the “right to strike” in the UK depends for its realisation on a complex statutory scheme. Even in jurisdictions where the right to strike is specified textually in a constitutional document, such a complex right must be operationalised through labour statutes. It is a classic instance of a “legislated” right. Since the enactment of the Human Rights Act, and the evolving jurisprudence of the ECtHR, UK law may now be described as protecting a right to strike albeit one that is pieced together from a variety of sources: statutes such as TULRCA, the common law, Convention rights, and relevant case law.’[1]
Does this statement accurately encapsulate the UK law on the ‘right to strike’? How do the different sources of law interact and what factors determine the correct balance to be reached between competing interests in regulating industrial action? Use case law, statute, legal commentary and social science material in your answer and provide illustrations to support your analysis.
In line with socialism and Professor Beverly Silver’s assertions, capitalism is established upon ‘two contradictory tendencies’: ‘crises of profitability and crises of social legitimacy’.[2] This ‘inherent labour-capital’[3] struggle is reflected within the UK’s hostile regulation of industrial action. The courts’ and legislature’s ideological approaches towards the collective right to withdraw labour unanimously and substantially favours economic growth above social welfare.[4]
Striking, overtime bans, and refusing to carry out certain tasks are collective forms of actions that can arise from workplace disputes.[5] These disputes typically occur because employers are unwilling to negotiate with employees and workers about their working terms or conditions. Undeniably, the duration – and the aftermath – of the collective action results in financial losses to the business and affect innocent third parties (i.e. the general public).[6] Therefore, in order to appease and ‘bring the labour under control’, the capital would ‘have to make concessions [i.e. comply with the strikers’ new terms], which provoke crises of profitability’.[7] However, the loss suffered by a business[8] during and after industrial action is justified on two persuasive grounds. The first ground identified by Gwyneth Pitt is the human right aspect.[9] To restrict the right to strike would be akin to the horrific period of slavery,[10] where man had no power to withdraw his labour. This justification is recognising the inequalities in bargaining power between employer and employee.[11] This inequality has been further escalated by the growth of the modern-day unstable gig economy; one in nine UK workers are in precarious work.[12] This form of work has limited protection and much lower salaries.[13] Hence, a subsequent ground for the justification of withdrawal of labour is the equilibrium argument. The power of the employer and their actions can only be matched and questioned by a ‘concerted stoppage of work’.[14] Essentially, the right to strike is more than the withdrawal of labour: it is also the encompassing ‘right to free expression, association, assembly and power’.[15] Yet there is ‘no positive legal right to strike in the UK’.[16]
Instead, ‘the “right to strike” in the UK depends for its realisation on a complex statutory scheme’.[17] In contrast to its neighbouring European countries’ (Spain and Italy) jurisdictions ‘where the right to strike is specified textually in a constitutional document’, the UK law ‘protects a right to strike … from a variety of sources: statutes such as TULRCA, the common law, Convention rights, and relevant case law’.[18] The accuracy of Bogg and Dukes’ encapsulation of the UK law on the ‘right to strike’ and how the different sources of law interact will be subsequently discussed.
Common Law
Judiciary
While Spain[19] and Italy[20] protect the right to strike by suspending the contract of employment during industrial action, this contract is broken under English law.[21] This is because the English common law does not confer a right to strike,[22] hence ‘the rigour of the common law applies in the form of a breach of contract on part of the strikers and economic torts … [for] the organisers and their union’.[23]
It is tortious and indefensible[24] to induce an individual to breach their contract of employment.[25] This principle was established in Lumley v Gye,[26] and this liability extends to trade unions in the context of industrial action.[27] Additionally, there are two further economic torts trade unions can be held liable for: liability for conspiracy to injure (Quinn v Leathem)[28] and causing loss by unlawful means. Until OBG Ltd v Allan, Douglas, and others v Hello! Ltd,[29] the ‘tort of procuring a breach of contract had been [“blurred”[30] and] extended [to be a wider] tort of unlawful interference with contractual relations’.[31] These torts were later distinguished and separated in the House of Lord’s (HoL) judgment of OBG v Allan.
While it is not often, the courts are encouraged to distinguish and introduce new torts. The HoL in OBG v Allan subsequently outlined the distinguishing elements between unlawful means and the tort of procuring a breach of contract. The tort of procuring a breach of contract is an accessory liability. Whilst the tort of unlawful means is a ‘primary liability that is not dependent on the third party having committed a wrong against the claimant’.[32] Yet, despite the tort differences, the HoL confirmed that the same act could give rise to liability under both unlawful interference and procuring a breach of contract.[33] This clarification and the development of unlawful interferences as a separate liability has notably accommodated employers in holding trade unions liable for more than one tort.
The OBG v Allan judgment is significant for discussing industrial action for two notable reasons. The first is that it confirms the judiciary’s ‘uncontrolled power’[34] in developing and ‘defining torts boundaries on a case-to-case basis.[35] This power is ‘ensur[ing] that trade unions cannot provide a lawful excuse or justification for their actions’[36]; trade unions are ultimately ‘stood naked and unprotected at the altar of the common law’.[37] The insufficiency of protection for trade unions under the common law exhibits the judiciary’s biased and hostile ideology towards industrial action.[38] This subsequently aligns with the following observation: the courts favour economic profits. This is discerned by the extent to which the contemporary judiciary extends protection for commercial bodies.[39] The primary function of English tort law was to protect physical integrity and property rights; tort law was never concerned with the protection of economic interests.[40] Nor had the common law ever been historically exercised to ‘legitimately control aspects of the economy’[41] and yet OBG v Allan demonstrates the extent to which this has now changed. The judiciary has extensively and needlessly stretched the common law and its torts[42] to protect ‘already powerful organisations’.[43] Hence, from the perspective of trade unions and their members, the common law’s (inadequate) protection for the ‘right to strike’ has been, undeniably, very disappointing.
Statutes
Legislature
One of the major problems facing trade unions was the ‘exposure of their funds to legal action by employers’[44]; in 1901, Taff Vale Railway Co successfully sued the Amalgamated Society of Railway Servants union for £42,000.[45] This sum is equivalent to £5,196,328.39 today. This verdict, in effect, eliminated ‘the strike as a weapon of organized labour’.[46] Naturally, workers turned to political parties for redress. The concern and advocacy for trade union reform accounted for 59% of the winning Liberal party’s election manifesto.[47] The Liberal government, led by Prime Minister Henry Campbell-Bannerman, provided unions with wide immunity against any tortious liability arising from trade disputes under The Trade Disputes Act (TDA) 1906. Although this Act did not introduce a ‘legislated right’ for industrial action,[48] this statute effectively recognised the vulnerability of unions under the common law by ‘secur[ing] a [statutory] freedom’ instead. [49] The TDA is one of the ‘most important pieces of labour legislation ever passed by a British Parliament’[50]; it effectively ‘kept the courts at a minimum’[51] and neutralised the most obvious adverse effects of the Taff Vale judgment. The ‘sympathetic politicians’ were ‘periodically reconstructing’ the role of the ‘class-conscious’, profit-favouring judiciary.[52] The outcome of the 1906 general election ‘served the unions’ interests well’[53] and it continued to for 65 years.
The ‘long enjoyed’[54] immunity of trade unions for liability in tort was reduced to partial immunity under the Thatcher government (1979-90). There is a ‘scale of government ideology’ which ranges from ‘fully participative’ to ‘fully authoritative’,[55] and the Thatcher government was the undoubtable latter. The Conservative ideology and economists, such as FA Hayek, viewed trade unions as an obstacle to economic growth.[56] This perception was heightened by the Winter of Discontent (1978-79): a period characterised by widespread of strikes in response to the Labour government’s wage cap (to maintain falling inflation).[57] Subsequently, Thatcher’s government further justified the re-introduction of liability for trade unions upon the succeeding Green Papers: the 1981 Trade Union Immunities[58] and the 1989 Trade Unions and their Members.[59] Both papers outlined concerns regarding democracy, rights, and freedom of trade union members; ‘too often in recent years it has seemed that employees have been called out on strike by their unions without proper consultation and sometimes against their express wishes’.[60] Accordingly, the Thatcher government introduced legislation that prior Conservative governments were afeard of passing: the Employment Act 1980, Trade Union Act 1984, and Trade Union Reform and Employment Rights Act 1993. These re-introduced vulnerability and high costs for unions. Under the Employment Rights Act 1980, ‘trade-dispute’ was re-defined, statutory liabilities were introduced and unions were exposed to injunctions and claims for damages. However, upon complying with the stringent balloting requirements (from secret ballot to the requirement for all ballots to be postal) in the 1984 and 1993 Acts, the dispute would be deemed lawful.[61] It is expensive for unions to comply and evidence the fulfilled balloting requirements, but if lawful union members are statutorily protected from unfair dismissals and injunctions.[62] While this is a brief summary of the Acts, these restrictive measures offer an insight into the Thatcher government’s success in exercising its agenda of restricting the lawfulness of industrial action by limiting its previously protected scope and purposes.
Subsequently, the process of placing further controls on trade unions continued into the 21st century.[63] The 2015 Conservative government introduced the ‘draconian’[64] Trade Union Act 2016 (TUA) – the most significant union legislation since the Employment Act 1980. The TUA introduced a minimum threshold of eligible members to vote in the ballot (at least 50% turnout and 50% voting in favour).[65] Moreover, in the instance the members are engaged in ‘important public services’,[66] 40% of all members entitled to vote must have voted in support of the industrial action. These stringent procedural requirements have to be strictly followed for a strike to be lawful.[67] Oddly, there was no pressing need to introduce these restrictive measures.[68] There were no significant problems in industrial relations at the time (ie, Winter of Discontent) nor any significant ‘pressure from business for further laws on strikes’,[69] but the Conservative government justified these 2016 measures through the findings of Bruce Carr QC and Ed Holmes.[70] The Government submitted the Carr Review to indicate a consistent pattern of union bullying workers, and yet Carr himself ‘did not contend his findings to be a sufficient basis’ for influencing the TUA.[71] Instead, the true motivations behind the government’s 2016 legislative programme are observed by the ‘striking resemblance’[72] to Ed Holmes Modernising Industrial Relations (MIR) paper.[73] The policy paper daringly questioned the necessity of protecting industrial action by reflecting on the development of employment tribunals and discussing the economic consequences of strikes. The same ‘free-market economic theory’ that underpinned the MIR’s recommendations ‘drove’ the pragmatically restrictive and economically influenced 2016 statute developments.[74]
The substance of today’s statute in protecting trade unions ‘is far removed and much weaker than the position established in 1906’.[75] Since the Henry Campbell-Bannerman leadership, trade union membership has declined by more than half due to the ‘three successive Conservative governments [who] have enacted labour legislation opposed by unions’.[76] It appears the deep-rooted ideology of the political party in power influences the legislative steps for protecting trade unions.[77] Therefore, the extent of the Conservative government’s ‘authoritarian, class-biased and oppressive’[78] industrial action policies will be exemplified and ‘more evident than they are today when a Labour government is elected again’.[79]
Judiciary
While the likes of Maurice Kay LJ and Lord Neuberger MR ‘characterised the statutory immunities as limited exceptions to the common law’ to justify interpreting the statute provisions ‘strictly against the trade union’, the court’s overall response to industrial action ‘has been more mixed’.[80] The court in Merkur Island Shipping v Laughton[81] developed a three-part test to examine the legality of industrial action. This test encapsulates the substantive and procedural requirements for a lawful strike whilst observing the intertwined and ‘uneasy’ relationship between the common law and statute.[82] If the industrial action is unlawful at common law, the judiciary asks whether there is a ‘prime facie statutory immunity’ for the commission of torts.[83] This substantive question considers whether the action was ‘in contemplation or furtherance of a trade dispute’[84] before questioning whether the immunity had been procedurally lost by one of the three specified statutory reasons in TULRCA 1992.[85] The union’s partial immunity could be lost for minor ‘inconsequential breaches of the statutory rules’[86]; there is a series of High Court instances of injunctions being granted to ‘ever more powerful and well-resourced employers’[87] owing to invalid strike ballots.[88] The readily available labour injunctions continued to be the “key piece[89]” of suppressing collective action until the minor development in 2011.
In RMT v Serco Ltd; ASLEF v London and Birmingham Railway Limited (RMT and ASLEF),[90] the Court of Appeal approved and applied Millett LJ’s 1996 observation in London Underground Limited v National Union of Railwaymen, Maritime and Transport Staff:[91] ‘the democratic requirement of a secret ballot is not to make life more difficult for trade unions … but for the protection of the Union’s own members’.[92] Owing to this proposed democratic aim, the court in RMT and ASLEF confirmed it was ‘to interpret the statutory provisions somewhat less stringently’.[93] This interpretation is a stark contrast to Maurice Kay LJ’s understanding of parliament’s intentions. The court furthered Millett LJ’s aim by recommending a neutral, ‘without presumptions one way or the other’,[94] interpretation of TULRCA. Upon the fact TULRCA is premised on the existing common law framework, the court’s ‘judicial creativity’ could have easily ‘outflank[ed] the intentions of Parliament’.[95] Instead of a ‘neutral’ approach, the courts have the power to mitigate unions disproportionate vulnerability against injunctions, damages, and unfair dismissals by encouraging and favouring social legitimacy. Although, the RMT and ASLEF court ‘only indicated a change in emphasis rather than substance’[96] (since unions are still burdened with the challenges of exercising a ‘lawful’ strike),[97] this judgment enhanced union’s ability to resist injunction applications (as observed by Balfour Beatty Engineering Services Limited v Unite the Union).[98] The unbiased interpretation encouraged in RMT and ASLEF continues to be the leading approach to interpreting domestic statutes regarding industrial action.
ECHR
Judiciary
Admittedly, the scope of Maurice Kay LJ’s strict interpretation was narrowly limited by the European Court of Human Rights (ECtHR).[99] The ECtHR confirmed, in Enerji Yapi-Yol Sen v Turkey,[100] that Article 11 of the European Convention on Human Rights included protection of the right to strike. This Article, and Article 6 of the European Social Charter[101] bestow the right to strike for their member states members and due to the UK Human Rights Act 1998, ‘British workers are understood to enjoy a right to strike’.[102] This, unlike the mere domestic statutory immunities, is the only instance of a ‘legislated’ right to strike in the UK.[103]
Under section 3(1) of the Human Rights Act 1998, ‘statutory provisions must be read and given effect in a way which is compatible with the Convention rights’[104] – ‘the opportunity to test this line of argument’[105] in the English courts arose in Metrobus Ltd v Unite the Union (Metrobus).[106] The Court of Appeal rejected the Enerji arguments; the Court denied the authority’s relevance for the interpretation of UK statutory provisions. This judgment continues to be the leading precedent on the UK’s provisions of Article 11,[107] despite the RMT and ASLEF judgment. In RMT and ASLEF, the UK courts acknowledged the ‘clearly protected’[108] right to strike under ECHR Article 11. However, the court emphasised the importance of a ‘fair balance to be struck between the competing interests of the individual and the community as a whole’.[109] The emphasised interests of the ‘community’ motivated the court’s justification for the ban on secondary action owing to its ‘potential to … cause broad disruption within the economy and to affect the delivery of services to the public’.[110] Subsequently, the court confirmed that this ban aligns with Article 11(2) ‘on the basis of a wide margin of appreciation accorded to the State’.[111] While the court is correct to recognise their bestowed margin of appreciation, the court rationalised the granting of the injunction, ‘which itself cost the union a substantial sum’,[112] upon economic factors. This factor is not only ‘wholly irrelevant to the specific facts of the application’ but it disregarded and postponed ‘the exercise of what was acknowledged to be a convention protected right’.[113] The court effectively and ‘successfully prevented industrial action on the basis of legal’ human rights provisions ‘which are intended to benefit workers’.[114]
In short, there ‘is no point creating rights’ or passing human rights legislation if the ‘court is not prepared to defend them’.[115] There will continue to be an erosion of human rights protection until there is greater coordination between the domestic courts and the ECtHR. It is credible to conclude that the UK judiciary is more concerned with profitability, self-preservation of UK powers, and ‘in appeasing political forces’[116] above the interests of the individuals it and the Convention Rights was established to serve.
Legislature
The RMT and ASLEF court’s ‘blessing of a wide margin of appreciation’ in the ‘encompassment’ of Article 11 offered a ‘green light for further restrictive legislation on industrial action’ by the ‘only too happy Government’.[117] Here, Boggs and Ewing detect ‘the crude politics of power’.[118] Upon observing the Court of Appeal’s reluctance to exercise EU conventions, and the UK courts’ developments that continue to be ‘very much in line with the political approach of the Conservative government’,[119] it materialises that the court and government are not ‘looking to open a third (ECtHR) front’.[120]
The Government has recently launched an ‘independent review’ of the Human Rights Act.[121] The review aims to evaluate ‘the duty to take into account’ ECtHR case law and assess ‘whether dialogue between our domestic cou
Nádleeh and the River: Third Gender and Interdependences in Sidney Freeland’s Film Drunktown’s Finest
Get PDFIn a late scene in Sidney Freeland’s 2015 film Drunktown’s Finest, the family elder Harmon John (Richard Ray Whitman) sits down with his adult transgender grandchild Felixia (Carmen Moore) to tell her a Navajo story. “A long time ago,” he begins, all the Navajos lived alongside the river. But the men and the women didn’t get along, so the men took the nádleeh (which a subtitle translates as “third gender”) and moved to the other side, leaving the women and children. But soon enough the men realized they missed the women and their children, so they sent the nádleeh back across the river to check on the women, who, it turns out, were missing the men. “Both sides needed each other . . . and they both needed the nádleeh. And to this day we carry this lesson, this balance.” The scene in Freeman’s film, though it comes late, suggests an important theme running throughout, that of the fundamental and inherent place of the Nádleeh in Navajo life and culture. The essay argues that Freeland makes erotics a way to understand the “dynamics of indigeneity.” Freeland can be said to “foreground interdependence and vulnerability as positive principles of peoplehood" (Rifkin 35). Viewing the film in the contexts of gender fluidity and structures of kinship helps clarify the interrelatedness of all three of the (only) apparently disparate plots as it at the same time helps the viewer to rethink (colonial culture’s) rigid gender boundaries
Extinction in Embrace of the Serpent: Capitalism’s Erasure of People, Culture, and Nature
No full textThis paper examines Ciro Guerra’s film, Embrace of the Serpent, in relation to the concept of the Capitalocene, using literary theory alongside sociological, anthropological, and historical writings in order to examine its interactions with the concept. The film tells the story of Karamakate, the last surviving member of the Cohiuano people who were eradicated in the Rubber Holocaust, and criticises capitalism as an extension of colonialism and the cause of multiple extinctions. Indeed, the film rejects the notion of the Anthropocene and its homogenous view of “human” activity, explicitly demonstrating that it is specifically capitalism as an extension of colonialism that is having such detrimental and violent effects on the climate through its presentation of Indigenous ecological practises in contrast to the colonists’ destructive relationship to the world. The paper is split into three sections: the extinction of people via forced labour, decimation of land, murder, and dispossession; the extinction of Indigenous cultures, comparing the personification, conservation, and kinship with nature, to capitalism’s commodification, exploitation, and demonisation of nature; and the extinction of nature itself via its domination and cultivation. This project aims to demonstrate how Embrace of the Serpent presents extinction as a result of capitalism, shows the dangerous reality of the capitalocene, and the ongoing effects of colonial environmental practises. It also demonstrates the ways in which Guerra criticises the omittance of Indigenous knowledges and practises, particularly through the presentation of the narrative from the perspective of one of the Indigenous communities the capitalocene affects the most, telling their side of the story and drawing attention to the brutal history of the rubber trade in Columbia
ARNOLD V BRITTON [2015]: AN ODYSSEY OF COMMERCIAL INTERPRETATION: (Case Commentary)
Get PDFINTRODUCTION
Arnold v Britton [2015][1] clarified that where the language of a contract is unambiguous the literalist interpretation of the wording will outweigh the principle of commercial common sense. The subject of the litigation was a deceptively reasonable service charge clause included in 25 lease agreements at £90 a year, which increased by 10 percent compound interest per annum. Due to the high rate of inflation at the time the contracts were entered into, the service charge increased exponentially reaching extortionate rates. Deciding in favour of the landlord, the court marks a shift to a more conservative approach to contractual interpretation, which centers on textual analysis with less regard to external context[2]. But beyond updating the rules of construction, the exercise of balancing literalism and business common sense has served as a lighthouse, illuminating the often-treacherous waves that govern commercial relations. The Lords’ have deliberated whether commercial sensibilities should be allowed to interfere with the function of a competently drafted service charge and an answer has been reached. However, by favoring the commercially nonsensical interpretation of the provision in question, the Supreme Court has underestimated the value of ensuring amicability and fairness in business relations. The lingering question that remains unanswered and unchallenged is; what commercial behavior is the Supreme Court condoning by choosing to enforce this agreement?
REASONABLENESS OF THE JUDGEMENT
Historically, English principles of contractual interpretation have been perceived as strictly literalist. Contractual interpretation is considered the ‘ascertainment of meaning which the document would convey to a reasonable person’[3] with access to all relevant background information. Generally, English courts are reluctant to stray away from the natural meaning of an agreement, where the language used is clear. In this case, the wording of the clause in question was identified as unambiguous, leaving little room for a different interpretation. Also, it is important to note that the question of fairness is unimportant as English law ‘does not often accept that people have made linguistic mistakes’[4] and courts avoid using their red pen to rectify a bad bargain. Interpretation is the exercise of identifying what the parties have agreed, not what the court thinks they should have agreed. Therefore, the Supreme Court’s decision to assent to the commercially absurd interpretation was justifiable, as the danger of deciding otherwise would render legal relations in the business world volatile and risky. If plain words cannot be trusted, drafters would face an impossible task. Such was the opinion of Lord Neuberger who delivered the majority judgement, emphasizing that ‘the language of the clause was simply ‘too clear’ as to lend itself to a different interpretation. He was reluctant to consider the agreement as commercially inconceivable given that inflation had been running over ten percent between 1974 and 1981[5], meaning that this unfair result could have occurred to the detriment of either party. The purpose of this analysis is not to condemn the decision of the Supreme Court, but to underline certain implications that may pose a danger to future commercial relations.
ROLE OF COMMERCIAL COMMON SENSE
The precedents of commercial common sense have emerged in cases were the court is required to navigate the murky waters of an ambiguous agreement. In its genesis it was held that ‘detailed semantic and syntactical analysis of words’[6], which leads to a conclusion that is contrary to business common sense, must yield to the commercially probable interpretation. Opposing pedantry, it cuts through language that is commercially ambiguous and is hostile to technical interpretations and linguistic niceties[7]. In principle, business common sense clears the fog of a linguistically ambiguous contract granting flexibility in the process of construction. However, the judgement in Britton reflects the law’s reluctance to rely on this concept in the fear of disrupting the continuity of English case law.
The service charge clause consisted of two parts, a descriptive part and a quantifying part. Lord Neuberger accepted that there was potential conflict between the two parts of the clause but rejected the lessee’s argument that the first half should be interpreted as imposing a cap in order to avoid a commercially absurd result. Favouring the landlords fixed-rate interpretation, implies that commercial common sense can also be employed as a vehicle of deception. Just as technical language can conceal the consequences of an agreement, similarly CCS can also be used as a ‘camouflage for partisan arguments’[8], which are really pleas for escaping a bad bargain. The majority held that ‘the natural meaning of the words used was clear’: the first half of the clause stipulated for an annual charge and the second part quantified that charge. This interpretation of the second half of clause 3(2) was understandable as a variable charge would give rise to many future disputes regarding proportionality. On the contrary, Lord Carnwath’s advocation for a commercially sensible result was acknowledged but ultimately rejected as this would mean ‘inventing a lack of clarity’[9] to depart from the natural meaning of the clause. By doing so, the majority’s insistence on protecting the continuity of English case law and the clear wording of the agreement, was viewed as a higher priority than enforcing commercial logic. It is this very continuity in contractual interpretation which protects commercial parties by enforcing the virtues of certainty and predictability in business relations[10]. Paradoxically, the pursuit for continuity may instead have the effect of muddying the waters of future construction as courts will not always have the luxury of a singular clear interpretation. The majorities conditioning of commercial common sense as a variable dependent on the degree of ambiguity may inspire a heightened need for rectification in similarly ambiguous agreements, and of course the amount of red ink available is always limited.
LACK OF FACTUAL MATRIX
From a superficial perspective, the decision to undermine the importance of this concept in business agreements may be understood as a reminder to lower courts that commercial common sense is not to be employed in unambiguous contracts. However, the question of whether an agreement is commercially sound is to be determined by inquiry to the overall purpose and provisions of a contract[11]. The contention that business common sense should not be ‘invoked retrospectively’ to avoid offending the natural language of the clause in question appears rather reaching. Pragmatically, not all judges possess the business acumen required to decipher what constitutes a commercially sensible agreement. This is especially true in agreements were the language used lends itself to multiple competing interpretations. Therefore, it is imperative to investigate the factual matrix behind a transaction, to avoid de-valuing the commercial implications of an absurd result.
The question of whether to draw or conceal the proverbial sword of “commercial common sense” can be better determined by inquiry to overall purpose of the agreement[12]; a resource the Supreme Court had limited access to, due to the lack of “factual matrix”, which includes any information that was available to the parties at the time the contract was entered into. In other words, the decision to undermine the authority of business good sense, while necessary, appears rudderless as the majority had insufficient material to justify this approach. Apart from information about inflation, no other information was available for the majority to justify negating such a crucial agent of commercial interpretation. There was no clause in the agreement which calculated the possible exponential growth of the service charge. A measure which would have benefited both parties, if the majorities contention that the risk was mutual was indeed true (due to the high inflation of the 1970’s). As established in Rainy Sky [2011], the process of construction requires the court to consider the language used having ‘regard to all the relevant surrounding circumstances’[13]. So, the majority’s reluctance to employ business common sense may be an indicator that they were ill-equipped to do so. But, evading the spotlight of abolishing a crucial tool of construction comes at the cost of thinning the line that the separates commercially unattractive agreements and undeniably absurd clauses, which clearly do not reflect the intention of the parties involved.
UNEXPLORED AMBIGUITIES IN THE AGREEMENT
To continue venturing into a credible rhetoric of skepticism without appearing redundant, one must assess the lack of factual matrix in line with the inherent ambiguities in the lease agreement. These ambiguities were highlighted in Lord Carnwath’s dissenting judgement, advocating for the court to adopt the commercially logical interpretation. For example, the covenant requires the tenant to pay an annual service charge of £90 subject to exponential growth since 1974, while the alteration was made in 1980. In other words, the tenant is agreeing to pay six years of service charge before the lease was granted[14]. A result which runs contrary to the logic of a “reasonable commercial person”. Also, the “triennial” covenants included in the early leases, contained the words “every subsequent Three-year period” instead of “every subsequent year”. Whether these ambiguities allude that the variation of the leases were subsisting a loss incurred in the early leases is an argument Lord Carnwath was ill-equipped to employ. As asserted by Lord Neuberger, the court would not endeavor ‘inventing a lack of clarity in the clause as an excuse for departing from its natural meaning’[15] as this would mean rewriting an unambiguous agreement. Additionally, there was no evidence available regarding the actual expenditure given by the landlord on meeting her obligations under the provision of the lease, whereas the escalator clause was quantified far more precisely. These minor details, when viewed together, may indeed legitimize the contention of ill-will. Naturally, no authority with the stature of the Supreme Court would dare navigate the potentially hazardous avenue of unilaterally altering the historically accepted nature of the English contract in order to emphasize the real intention of the parties. Ultimately, the clarity of the language used renders any rhetoric regarding ill-intent, futile, as the court would not undermine the clear language of a commercial agreement in order to facilitate such rhetoric. For this reason, no court though these ambiguities substantially material.
WHAT COMMERCIAL BEHAVIOUR IS BEING CONDONED?
Returning to the initial question regarding the commercial principles the Supreme Court is allowing to prosper, it is likely that future matters of heightened linguistic ambiguity will emerge. Given the futility of Parliamentary intervention, due to the adverse impact this would have on many mixed-use developments[16], it is evident that the common law has a monopoly on writing the frameworks of construction. In Britton, Lord Neuberger emphasized seven factors to be employed in contractual interpretation. The weight of these frameworks is not to be undermined, as the Supreme Court is not only clarifying the rules of interpretation but is also implying (avoiding blatantly admitting) that mistakes have been made in prior cases of construction. An example of this is the implied correction of the approach in Aberdeen[17] (6th factor), in which Neuberger claimed that the clear intention of the parties will be given effect over other interpretations. This seems to run contrary to the result of Britton, which disregards the concept of “reasonable commercial intention” to avoid offending the clarity of the agreement. Most problematically, the second factor states that where the drafting of an agreement is clear, the court must not search for ‘infelicities in order to facilitate a departure from the natural meaning’[18] [18]. In less polished words, it is justified to assent to an interpretation that is clear even where this clarity stems from an ambiguous agreement, with a commercially absurd result and with limited liberty to the matrix of fact. By favoring the landlord’s interpretation, the court is inadvertently limiting its flexibility in regard to future construction. The same clarity that outweighed all other considerations in the present matter, may be used as a tool to facilitate improbable agreements, in such a way as to allow pedantic parties to overthrow the courts’ monopoly of construction.
CONCLUSION
Although the decision in Arnold v Britton did not alter the underlying principles of construction, it shed light to the hierarchy of the components to be used in the interpretation of an unambiguous agreement. It is now evident that the clear wording of an agreement will supersede commercial infelicities and linguistic ambiguities. But, by laying the foundations of such a rigid interpretive autonomy, the Supreme Court is effectively better enabling ill-willed parties to monopolize the process of construction, using the overtly elevated judicial status of “clear language” in a contract as a tool to legitimize absurd interpretations. The exercise of clarifying the contemporarily accepted rules of construction has occurred at the detriment of other crucial variables.
More recent litigious proceedings have alluded that a mistake may have been made in the judgement of Britton. In the case of Monsolar IQ Ltd v Woden Park Ltd [2021][19], the Court of Appeal rejected the absurd interpretation of an indexation clause in a lease agreement, which clearly did not reflect the intentions of the parties. Ambivalence is evident on whether the Court of Appeal has received or accepted the message left by Britton, as Nugee LJ rejected the contention that Arnold v Britton had modified the Chartbook[20] principle, which states that commercial common sense may indeed outweigh the literal interpretation of wording. Though not binding upon the Supreme Court, the case of Monsolar is didactic of the fact that the line which separates commercially imprudent provisions and nonsensical clauses may indeed be thinning. I believe the Supreme Court has undermined the existence of pedantry amongst commercial parties, seeking to dominate the process of construction by adhering to the hierarchical structure of interpretative components set out in Britton in a way as to serve their own benefit. The rainy sky may have dried up, but the benevolent seas that govern commercial behavior, have yet to be explored.
[1] UKSC 36
[2] Suzanne Robertson, ‘Making Sense of Commercial Common Sense’ [2018] VUWLR 279
[3] Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] UKHL 28
[4] ibid.
[5] Katharine Osbergy, Christopher Stothers, ‘Contracts Patents and Chess - Applying Arnold v Britton to patent claim construction’ [2017] JIPL 23
[6] Antaios Compania Naviera SA v Salen Rederierna AB (The Antaios) [1985] A.C. 191
[7] Neil Andrews, ‘Interpretation of contracts and “commercial common sense”: do not overplay this useful criterion’ [2017] CLR 36
[8] ibid.
[9] Britton (n 1)
[10] Geoffrey Vos, ‘Contractual Interpretation: Do judges sometime say one thing and mean another?’ [2017] CLR
[11] Andrews (no 7)
[12] Ibid (no 7)
[13] Rainy Sky SA v Kookmin Bank [2011] UKSC 50
[14] Paul Clark, ‘Drafting after Arnold v Britton’ [2015] 373
[15] Britton (no 1)
[16] Ibid (no 14)
[17] [2011] UKSC 56
[18] ibid (no 1)
[19] EWCA Civ 961
[20] [2009] UKHL 3
Access Repository Dashboard
Do you manage University of Kent Open Access Journals? Access insider analytics, issue reports and manage access to outputs from your repository in the CORE Repository Dashboard!