Embark on a detailed exploration of the Arnold v Britton case, where contractual obligations and interpretation principles take center stage. This document provides a comprehensive analysis of the case, dissecting key legal arguments, precedents, and implications. Whether you're a law student, lega...
`“Critically analyse the judgement given by the United Kingdom Supreme Court (UKSC) in Arnold”
The Supreme Court judgement in Arnold v Britton & others [2015] UKSC 36 reinforced the idea that the courts
will favour the literal meaning of the wording and warns against invoking commercial common sense (CCS)
retrospectively.1 The majority, Lord Carnwath dissenting, held that clause 3(2) had no ambiguity and there was
nothing “significantly wrong” with the wording of the service charge clause.2 The court’s interpretation of
clause 3(2) held that the lessees should pay the lessor a service charge fee of £90, increasing on a compound
basis, of ten percent per year.3 This interpretation of the lease will end up disastrously for the lessees as the
total amount payable would total to £11,238,016.4
At face value, Arnold may not be seen as relevant to explore a feminist approach; it is a contract law case
where the rights of women are not explicitly at risk.5 Nonetheless, it is an excellent contender for the
exploration of the feminist theory of judging.6 It is an excellent contender as it poses a fundamental question
regarding the legal principles governing contractual relationships.7 By focusing on feminist legal theory this
commentary argues that the laws of the traditionally masculine past and present have sullied so much of
contract law's deep legal frameworks. 8 Rejecting attention to more obvious criticisms of the judgement, this
commentary is limited to first critically analysing the objective approach to contractual interpretation, second
the principle of freedom of contract, and third the contextualisation of legal principles. After a proper analysis,
this commentary concludes that the formalist approach adopted by the court in Arnold, in respect to
contractual interpretation, is gendered and disadvantages those who lack business experience.9
To explore the relevance of feminist legal theory in relation to contractual interpretation, it is first important to
highlight what is meant by feminist legal theory and second what the general contractual approach employed
by Lord Neuberger and his fellow Justices are. A popular process of feminist reasoning is a contextualisation of
facts and challenging gender imbalance embedded in legal principles.10 It has been argued by some that this
may produce partiality and subjectivity and that the best way to reach a neutral and fair result is by detaching
oneself from “race, class, sex, and political belief”.11 In reality, judges will be unable to subconsciously exclude
philosophical and political beliefs, including feminism.12 Conscious awareness of their beliefs will inform their
decision-making process by being more inclusive of the lived human experiences of the economically weaker
party, usually women.13
Secondly, there are many cases that explore what the correct approach to contractual interpretation is. Lord
Hoffman in the case of Chartbrook Ltd v Persimmon Homes Ltd argues that the intention of the parties should
be observed as to what a “reasonable person” would have “understood the language in the contract to
mean”.14 In ICS v West Bromwich, it was seen as a move away from the literalist approach to a more contextual
one yet it still used what a reasonable commercial person would interpret them as.15 In Rainey Sky v Kookmin
Bank the court changed direction by letting commercial common sense prevail where there is ambiguity in
1
David Grant, “The rise and potential fall of corrective construction: the implication for pension trusts”
(2019) 33(2) 60-83
2
David McLauchlan, “Continuity, not change, in contract interpretation?” (2017) 133 (oct) L.Q.R.
546,547
3
Arnold v Britton and others [2015] UKSC 36 [5]
4
ibid [103]
5
Rosemary Hunter, Erika Rackley and Clare McGlynn, Feminist Judgments: From Theory To Practice
(Hart Publishing 2010) 184
6
Ibid
7
Ibid
8
Robin West, Cynthia Bowman and Katharine K Baker, Research Handbook on Feminist
Jurisprudence (Edward Elgar Publishing 2019).
9
Hunter n(3) at 187
10
Rosemary Hunter and Erika Rackley, 'Feminist Judgments On The UK Supreme Court' (2020)
32(1) Canadian Journal of Women and the Law 84,99
11
Ikenna Azuike, “Economic analysis of law” (2001) 8 UCL Juris.Rev 139, 140
12
Hunter n(3)
13
Hunter n(8)
14
[2009] UKHL 38
15
Building Society [1997] UKHL 28
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