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A Mad Tea Party: The role of clarity and common sense in the interpretation of construction contracts

Paper number
D201

Jon-Selous Borlace

May 2017

A paper based on the joint second prize winning entry in the Hudson essay competition 2016 presented to a meeting of the Society of Construction Law in London on 2nd May 2017

In this paper, Jan-Selous Borlace critically traces the evolution of the courts' approaches to the interpretation of terms within contracts since Lord Hoffmann's authoritative position in ICS v West Bromwich.The paper stresses the importance of these issues to construction, illustrating how judges have recently de-emphasised the role of 'commercial common sense' in the process.He also points out that the courts are not consistent in sometimes applying special principles of interpretation to particular categories of term, or considering some terms inherently unlikely to have been intended to mean what they appear to do, questioning whether this is wise or helpful in practice.

Introduction - Importance to the construction industry - The current law on contractual interpretation - Likelihood and commercial context - Fairness - A special rule of interpretation - Conclusions.

The author: Jon-Selous Borlace is a pupil barrister at Atkin Chambers, London.

Text: 13 pages