Reviewing the exclusionary principle in English contract law
- PDF / 224,529 Bytes
- 21 Pages / 439.37 x 666.142 pts Page_size
- 118 Downloads / 233 Views
Reviewing the exclusionary principle in English contract law Masood Ahmed
Published online: 30 September 2012 Springer Science+Business Media B.V. 2012
Abstract The exclusionary principle in English contract law is a long established but controversial rule of contractual interpretation. This article considers the jurisprudential origins of the principle and critically analyses judicial justification of the principle. This article also puts forward a case for how the principle can be reformed in order to introduce greater fairness within the process of contractual interpretation. Keywords
Interpreting commercial contracts Exclusionary principle Reform
Introduction In 2005 Lord Nicholls, writing extra-judicially, spoke of the need to give a ‘gentle stir’ to the debate concerning the exclusionary principle in English contract law: the long established but controversial rule that evidence of prior negotiations cannot be admitted when courts are tasked with interpreting the meaning of a contract.1 His Lordship’s arguments for the need to reconsider the legitimacy of the exclusionary principle within the jurisprudence of contractual interpretation were persuasively and forcefully presented. Despite this valuable contribution to the debate, the House of Lords in Chartbrook v Persimmon Homes Limited2 reaffirmed the exclusionary principle. To some, this was not only inevitable but necessary as the rules of
1
Nicholls (2005).
2
[2009] UKHL 38.
M. Ahmed (&) Birmingham City University, Birmingham, UK e-mail: [email protected]
123
112
M. Ahmed
interpretation as formulated by Lord Hoffmann in Investor Compensation Scheme Ltd v West Bromwich Building Society (No. 1)3 (which reaffirmed the exclusionary principle) have provided a clear framework within which the courts are able to conduct the complex task of interpreting contracts.4 However, in the opinion of the author, the House of Lords in Chartbrook missed a valuable opportunity to reform the exclusionary principle in the interest of greater certainty and fairness. This paper is a call to reform the exclusionary principle. Section one of this article will explore the origins, development, and justification for the exclusionary principle. In section two a detailed critical analysis is made of the exclusionary rule and the judicial comments which were made in Chartbrook in defending the rule. Finally, in section three the author will seek to put forward a case for how the exclusionary principle could be reformed. In particular, the author will seek to rely upon the approach taken by the Supreme Court in Oceanbulk Shipping & Trading SA v TMT Asia Limited5 (in which the Court permitted an exception to the without prejudice rule on the grounds of justice) in arguing that the exclusionary rule should be relaxed from its current position as an absolute rule and this would be justified (in the light of the arguments in section two) in the interest of justice. This article will also consider how the court’s case management powers can be utilised in controlling t
Data Loading...
