Not Ready for Change? The English Courts and Pre-contractual Negotiations

Botchway, Francis and Choong, Kartina Aisha orcid iconORCID: 0000-0001-9407-1771 (2011) Not Ready for Change? The English Courts and Pre-contractual Negotiations. The International Lawyer, 45 . pp. 625-645. ISSN 0020-7810

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The law relating to contractual interpretation in England and Wales is leaning increasingly towards a context-based approach. Despite this, pre-contractual negotiations are generally inadmissible as an aid to interpretation. This somewhat anomalous situation has drawn criticism from
many commentators. Recently in Chartbrook Ltd. v. Persimmon Homes Ltd., the House of Lords again endorsed the status quo, seeing no reason to depart from tradition. This paper argues that this stance is incompatible not only with the contextual paradigm but also with the approach adopted in other jurisdictions, and needs to be modernized. Further, as domestic courts at lower levels are already admitting such evidence in various circumstances, this paper argues that the courts should remove the rule because it inhibits their ability to do this clearly, efficiently, and fairly. Courts can deal with any concerns about cost and delay by effectively using the Civil Procedure Rules of 1998.

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