Just walk away (beforehand)

A very belated (and brief) note on Arnold v Britton & Ors [2015] UKSC 36, as I have just realised we didn’t cover it. A shameful omission. Our note on the Court of Appeal decision is here.

Briefly, the issue was that lease clauses for some (but not all) holiday chalet leases in the Gower effectively provided for a 10% per annum increase in fixed charges for maintenance etc. The compound effect of this was that leases that started with a £90 pa service charge in 1974 would have a charge of £1,025,004 pa by the end of the term in 2072. Even by 2012, the amount payable was considerably in excess of the actual costs to the landlord of the services.

By a majority, the Supreme Court held for a literal reading of the lease clauses, noting that in the mid 1970s inflation was indeed running at about 10% or more a year. While the clauses might have been a bad bargain, they were not clearly a mistake in the context of the time the leases were drafted.

The elements of the judgment with broader significance are Lord Neuberger’s seven principles of contractual interpretation of lease terms. These need to be set out in full, as they will be of enduring  importance.

First, the reliance placed in some cases on commercial common sense and surrounding circumstances (eg in Chartbrook, paras 16-26) should not be invoked to undervalue the importance of the language of the provision which is to be construed. The exercise of interpreting a provision involves identifying what the parties meant through the eyes of a reasonable reader, and, save perhaps in a very unusual case, that meaning is most obviously to be gleaned from the language of the provision. Unlike commercial common sense and the surrounding circumstances, the parties have control over the language they use in a contract. And, again save perhaps in a very unusual case, the parties must have been specifically focussing on the issue covered by the provision when agreeing the wording of that provision.

Secondly, when it comes to considering the centrally relevant words to be interpreted, I accept that the less clear they are, or, to put it another way, the worse their drafting, the more ready the court can properly be to depart from their natural meaning. That is simply the obverse of the sensible proposition that the clearer the natural meaning the more difficult it is to justify departing from it. However, that does not justify the court embarking on an exercise of searching for, let alone constructing, drafting infelicities in order to facilitate a departure from the natural meaning. If there is a specific error in the drafting, it may often have no relevance to the issue of interpretation which the court has to resolve.

The third point I should mention is that commercial common sense is not to be invoked retrospectively. The mere fact that a contractual arrangement, if interpreted according to its natural language, has worked out badly, or even disastrously, for one of the parties is not a reason for departing from the natural language. Commercial common sense is only relevant to the extent of how matters would or could have been perceived by the parties, or by reasonable people in the position of the parties, as at the date that the contract was made. Judicial observations such as those of Lord Reid in Wickman Machine Tools Sales Ltd v L Schuler AG [1974] AC 235, 251 and Lord Diplock in Antaios Cia Naviera SA v Salen Rederierna AB (The Antaios) [1985] AC 191, 201, quoted by Lord Carnwath at para 110, have to be read and applied bearing that important point in mind.

Fourthly, while commercial common sense is a very important factor to take into account when interpreting a contract, a court should be very slow to reject the natural meaning of a provision as correct simply because it appears to be a very imprudent term for one of the parties to have agreed, even ignoring the benefit of wisdom of hindsight. The purpose of interpretation is to identify what the parties have agreed, not what the court thinks that they should have agreed. Experience shows that it is by no means unknown for people to enter into arrangements which are ill-advised, even ignoring the benefit of wisdom of hindsight, and it is not the function of a court when interpreting an agreement to relieve a party from the consequences of his imprudence or poor advice. Accordingly, when interpreting a contract a judge should avoid re-writing it in an attempt to assist an unwise party or to penalise an astute party.

The fifth point concerns the facts known to the parties. When interpreting a contractual provision, one can only take into account facts or circumstances which existed at the time that the contract was made, and which were known or reasonably available to both parties. Given that a contract is a bilateral, or synallagmatic, arrangement involving both parties, it cannot be right, when interpreting a contractual provision, to take into account a fact or circumstance known only to one of the parties.

Sixthly, in some cases, an event subsequently occurs which was plainly not intended or contemplated by the parties, judging from the language of their contract. In such a case, if it is clear what the parties would have intended, the court will give effect to that intention. An example of such a case is Aberdeen City Council v Stewart Milne Group Ltd [2011] UKSC 56, 2012 SCLR 114, where the court concluded that “any … approach” other than that which was adopted “would defeat the parties’ clear objectives”, but the conclusion was based on what the parties “had in mind when they entered into” the contract (see paras 17 and 22).

Seventhly, reference was made in argument to service charge clauses being construed “restrictively”. I am unconvinced by the notion that service charge clauses are to be subject to any special rule of interpretation. Even if (which it is unnecessary to decide) a landlord may have simpler remedies than a tenant to enforce service charge provisions, that is not relevant to the issue of how one interprets the contractual machinery for assessing the tenant’s contribution. The origin of the adverb was in a judgment of Rix LJ in McHale v Earl Cadogan [2010] EWCA Civ 14, [2010] 1 EGLR 51, para 17. What he was saying, quite correctly, was that the court should not “bring within the general words of a service charge clause anything which does not clearly belong there”. However, that does not help resolve the sort of issue of interpretation raised in this case.

These seven theses will be effectively written in stone for any issue of the interpretation of contractual lease terms.

For an example of the Upper Tribunal interpreting Lord Neuberger’s principles, see our report here.

And for the luckless facing such leases? Lord Neuberger’s advice:

a prospective lessee of a flat in a block or the like (as here) will normally be likely to have less negotiating freedom as to the terms than in relation to a “free standing” property. But so will the lessor, and either is free to walk away if he regards the terms as unsatisfactory.

In short, don’t go there in the first place. Caveat lessee indeed. If any reminder were needed that a lease should be considered in detail before being agreed, this is it. And perhaps conveyancing solicitors should bear this in mind, as a failure to advise purchaser clients on the operation of lease clauses, including service charge provisions, may come back to bite them.

Thankfully, for these particular lessees, it appears that the lessor may be prepared to negotiated a variation in leases to a rate of CPI increase, though with a number of different lease variants and varying financial interests, this may not be easy to achieve.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Housing law - All, Leasehold and shared ownership and tagged .

2 Comments

  1. Indeed too often buyers get a limited report at the last minute with all arrangements in hand before understanding what they are buying. A prudent buyer and their solicitor ought really to acquire the lease and any management information as a matter of urgency. Over heard an agent saying to a potential victim holding print outs from LEASE “No don’t worry about all that ( lease length ground rent or service charge) – its share of freehold”.

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