The rules that we use to interpret contracts are hugely important when parties fall out. Lord Hoffman suggested that the courts should take a purposive or contextual approach to contractual interpretation. More recently, Lord Sumption has reminded us of the importance of the language actually chosen by the parties. Are these different approaches mutually exclusive – or complementary?
Network Homes Ltd v Harlow [2018] EWHC 3120 (Ch); [2018] PLSCS 201 concerned the installation of fire safety doors at the entrances to flats in Wembley. The landlord, a social housing provider, wanted to replace all the existing doors with certified fire-rated doors. But one of its tenants refused to allow it access to do so because he had difficulty seeing and was concerned that he would be unable to operate the locks that needed to be fitted on the new fire safety doors.
Did the landlord have a legal right to obtain access to replace the tenant’s front door? The answer depended on how the tenancy agreement was to be interpreted. It provided that “You must give all authorised employees and agents … reasonable access to the property to …. carry out essential maintenance, inspection and repair to the property or to the building or estate in which the property is situated. This includes treatment programs for pest eradication, improvement work and access to repossess your home if it is to be redeveloped or disposed of.”
The landlord accepted that the installation of new fire doors would constitute an improvement. But its rights of access were expressed to be for “maintenance, inspection and repair” – and the normal meanings of these words do not include improvements. Was it possible to interpret the clause to include “improvements” as well?
The landlord argued that the sentence stating: “This includes treatment programs for pest eradication, improvement work and access to repossess your home if it is to be redeveloped or disposed of” invested the words “maintenance, inspection and repair” with a wider meaning – and the judge agreed. The language used in the tenancy agreement had been poorly chosen. But the construction of legal documents is not a literalist exercise focused solely on parsing the wording of a particular clause; the background – or context – is also relevant.
A reasonable person would expect the landlord to be able to ensure the safety of all residents of the building, and to be able to require access to individual units for that purpose, and would have understood the author of the tenancy agreement to be using the words “maintenance, inspection and repair” to include pest control, improvement work and repossession. The language used in the tenancy agreement had been given a special overriding meaning by explicit definition. Or, to put it another way, the clause included its own dictionary.
The legal debate about the correct approach to contractual interpretation will no doubt continue. But this case demonstrates that contextualism serves a useful purpose – and that textual and contextual approaches are often complementary.
Allyson Colby, property law consultant
