“This Agreement is made in full and final settlement of all Claims any Party has or may have against any other Party or against any other Released Party.”
“3.1 Each Party agrees that the Released Parties are released and forever discharged from all Claims. 3.2 Each Party agrees that it will not bring any Proceedings against any Released Party in relation to a Claim or otherwise assert a Claim against any Released Party. Further each Party will take all steps necessary (including, without limitation, by the payment of money) to ensure that none of its Affiliates brings any Proceedings or asserts a Claim against any Released Party. 3.3 Each of the Parties agrees that if it takes Proceedings or asserts a Claim in breach of clause 3.1 above, damages are not an adequate remedy and, accordingly, that injunctive or other similar relief is appropriate to restrain that breach. 3.4 If, contrary to clause 3.2 above, an Affiliate of any Party (the First Party) brings Proceedings in relation to a Claim or otherwise asserts a Claim against another Party (the Second Party) or an Affiliate of the Second Party, the First Party shall pay on demand to the Second Party, or, if requested by the Second Party, to the relevant Affiliate, a sum equal to the costs (including, without limitation, legal costs), losses, liabilities, expenses and payments incurred or made by the Second Party or the relevant Affiliate in connection with or arising from the defence of, or otherwise responding to that Claim, including, without limitation, any sum due on a judgment or award given against that the Second Party or the Affiliate and any payment made in settlement or that Claim. A certificate signed on behalf of the Second Party (or, if payment is to be made directly to the Affiliate, the Affiliate) shall, except in the case of manifest error be conclusive as to the amount of any costs, losses, liabilities, expenses and payment incurred or made in connection with or arising from the defence of, or otherwise responding to, that Claim.”
“Textualism and contextualism are not conflicting paradigms in a battle for exclusive occupation of the field of contractual interpretation. Rather, the lawyer and the judge, when interpreting any contract, can use them as tools to ascertain the objective meaning of the language which the parties have chosen to express their agreement. The extent to which each tool will assist the court in its task will vary according to the circumstances of the particular agreement or agreements. Some agreements may be successfully interpreted principally by textual analysis, for example because of their sophistication and complexity and because they have been negotiated and prepared with the assistance of skilled professionals. The correct interpretation of other contracts may be achieved by a greater emphasis on the factual matrix, for example because of their informality, brevity or the absence of skilled professional assistance. But negotiators of complex formal contracts may often not achieve a logical and coherent text because of, for example, the conflicting aims of the parties, failures of communication, differing drafting practices, or deadlines which require the parties to compromise in order to reach agreement. There may often therefore be provisions in a detailed professionally drawn contract which lack clarity and the lawyer or judge in interpreting such provisions may be particularly helped by considering the factual matrix and the purpose of similar provisions in contracts of the same type.”
“there is no room today for the application of any special ‘rules’ of interpretation in the case of general releases. There is no room for any special rules because there is now no occasion for them. A general release is a term in a contract. The meaning to be given to the words used in a contract is the meaning which ought reasonably to be ascribed to those words having due regard to the purpose of the contract and the circumstances in which the contract was made. This general principle is as much applicable to a general release as to any other contractual term. Why ever should it not be?”
“Over the years different judges have used different language when referring to what is now commonly described as the context, or the matrix of facts, in which a contract was made. But, although expressed in different words, the constant theme is that the scope of general words of a release depends upon the context furnished by the surrounding circumstances in which the release was given. The generality of the wording has no greater reach than this context indicates.”
“By the nature of things, where negotiations are difficult, the parties’ positions, with each passing letter, are changing and until the final agreement, though converging, still divergent. It is only the final document which records a consensus. If the previous documents use different expressions, how does construction of those expressions, itself a doubtful process, help on the construction of the contractual words? If the same expressions are used, nothing is gained by looking back: indeed, something may be lost since the relevant surrounding circumstances may be different. And at this stage there is no consensus of the parties to appeal to.”
“The rule excludes evidence of what was said or done during the course of negotiating the agreement for the purpose of drawing inferences about what the contract meant. It does not exclude the use of such evidence for other purposes: for example, to establish that a fact which may be relevant as background was known to the parties, or to support a claim for rectification or estoppel. These are not exceptions to the rule. They operate outside it.”
“It may be said that previous documents may be looked at to explain the aims of the parties. In a limited sense this is true: the commercial, or business object, of the transaction, objectively ascertained, may be a surrounding fact. Cardozo J. thought so in the Utica Bank case. And if it can be shown that one interpretation completely frustrates that object, to the extent of rendering the contract futile, that may be a strong argument for an alternative interpretation, if that can reasonably be found. But beyond that it may be difficult to go ... In my opinion, then, … evidence should be restricted to evidence of the factual background known to the parties at or before the date of the contract, including evidence of the ‘genesis’ and objectively the ‘aim’ of the transaction.”
“What is not permissible, as the decision of the House of Lords in the Chartbrook case confirms, is to seek to rely on evidence of what was said during the course of pre-contractual negotiations for the purpose of drawing inferences about what the contract should be understood to mean. It is also clear from the Chartbrook case that it is not only statements reflecting one party’s intentions or aspirations which are excluded for this purpose but also communications which are capable of showing that the parties reached a consensus on a particular point or used words in an agreed sense.”
“20. The discussions went on for c.15 hours and was mainly a negotiation/haggling regarding an amount for settlement. Mr Delahunt [of Barclays], just as he had done in our telephone call on5 March 2015 , said that, whilst he denied any knowledge of any improper conduct by the Administrators, never mind playing any part in it, any such complaints or claims should be brought against the Administrators. That was the basis and understanding in the mediation on which we settled the Barclays Claim. Barclays were washing their hands/ distancing themselves from any such involvement in or responsibility for the actions of the Administrators. 21. My clear recollection is that all parties to the Settlement Agreement operated on the basis that Barclays were prepared to settle the Barclays Claim but not any claims we might have against the Administrators. I confirm that no discussion took place at any time with Barclays about also settling our claims against the Administrators. Barclays’ position was unequivocal – that was nothing to do with them – it was exclusively a matter for us. My own motivation in settling with Barclays on behalf of my companies was so that I could get them back on an even keel and then pursue the Administrators and their advisors. We wanted to recover the losses caused by the Administrators having sold almost all of the Companies’ assets to pay Barclays when they should have pursued Barclays for having mis-sold the swaps (which had brought about the Companies’ downfall).”
“This case has been settled on the basis that the [company] pay [Mr Dattani] the sum of£5,000 at the rate of£1,000 per month, the first payment to be made on16 November 1992 . [Mr Dattani] remains free to return to the tribunal should the sum agreed not be paid within the agreed time limits.” 35. The question arose whether the plaintiff had lost the right to bring County Court proceedings for unpaid wages. The Court of Appeal held that evidence from the counsel involved was admissible to identify the disputes which the parties had been trying to resolve. That, however, was on the basis that the “decision” was “evidence of what was agreed” rather than the contract itself. Mummery LJ, with whom Butler-Sloss and Swinton Thomas LJJ agreed, said at 884: “The critical question is: what claims were compromised? That is a question of the construction of the scope of the contract made between the parties, not a question of the construction of the decision document, save in so far as that document is evidence of the contract. The claim in the industrial tribunal was for unfair dismissal …. The industrial tribunal's decision document, which is evidence of what was agreed, simply says “This case has been settled on the basis …” and then states the basis on which it has been settled.”
“But A may agree to settle with B for £x not because either party regards that sum as the full measure of A's loss but for many other reasons: it may be known that B is uninsured and £x represents the limit of his ability to pay; or A may wish to pocket a small sum in order to finance litigation against other parties; or it may be that A is old and ill and prefers to accept a small sum now rather than a larger sum years later; or it may be that there is a contractual or other limitation on B's liability to A.”
“It is harder to know what weight (if any) the court should attach to the judge’s finding at para 127, that [the claimant] saw the real perpetrators as SEM and Bolton, and agreed to take£50,000 to leave the Player alone. On the one hand, subjective considerations of this nature would not sit easily with the essentially objective nature of the question posed by Jameson [v Central Electricity Generating Board[2000] 1 AC 455 ] and Heaton. On the other hand, the motivation of a claimant in agreeing to accept a sum by way of compromise representing less than the full measure of his estimated loss was clearly regarded as relevant by Lord Bingham in Heaton[2002] 2 AC 329 , para 5, quoted above. In my judgment, fairness requires that the court should be able to take such motivation into account as part of the factual matrix relevant to the issue whether the claimant has indeed accepted a sum representing the full measure of his estimated loss. The tension between a purely objective approach to this question, and subjective considerations of the kind mentioned by Lord Bingham, may perhaps be rationalised by saying that the court cannot sensibly form a view on the question whether the sum accepted in compromise represented the full measure of the claimant’s loss without knowing what it was that the claimant wished to achieve by entering into the compromise.”
“In any event, whether or not it is legitimate to take [the claimant’s] subjective intentions into account, I am satisfied that, on balance, the Jameson argument fails.”
“The release in clause 2.1 is of claims one Party (Party A) has or may have against ‘any other Party’ (Parties B, C or D) or ‘any other Released Party’. The ‘other’ Released Parties can only be the Affiliates of the Parties (i.e. the Affiliates of Parties A, B, C and D), the actual Parties (Parties A-D) are mentioned earlier and it is Released Parties other than those Parties that are encapsulated by the phrase ‘any other Released Party’ (emphasis supplied). As a matter of language and legal efficacy clause 2.1 therefore makes sense and is capable of operation as a matter of language and legal efficacy.”
“If B, on compromising A’s claim, wishes to protect himself against any claim against him by C claiming contribution, he may achieve that end either (a) by obtaining an enforceable undertaking by A not to pursue any claim against C relating to the subject matter of the compromise, or (b) by obtaining an indemnity from A against any liability to which B may become subject relating to the subject matter of the compromise.”
“I do not consider that it is arguable with a real prospect of success that the relationship of [Clyde & Co] with the Companies in relation to steps [Clyde & Co] is alleged to have failed to take or taken inadequately is other than one of agency, such that [Clyde & Co] falls within the word ‘agent’ forming part of the definition of Employee, Affiliate and therefore Released Party.”
“If there is some redundancy in clause 6.3 that does not … indicate anything other than an abundance of caution in drafting rather than confirming that the wide definition of ‘Employee’, encompassing ‘agents’, should be given some special restricted meaning, contrary to the natural wide meaning of the word ‘agents.”
“The principle established by the decision of the Court of Appeal in Ex p James is that the court will not permit its officers to act in a way which, although lawful and in accordance with enforceable rights, does not accord with the standards which right-thinking people or, as it may be put, society would think should govern the conduct of the court or its officers.”
“The court will not permit its officers to act in a way that it would be clearly wrong for the court itself to act. That is to be judged by the standard of the right-thinking person, representing the current view of society. If one were to pose the question ‘would it be proper for the court to act unfairly?’, only one answer is possible. It is interesting to note that fairness was introduced by some judges in the cases dealing with Ex p James at a comparatively early stage, but in general ‘fairness’ as a test in substantive, as opposed to procedural, law has grown significantly since many of those cases were decided. In so far as it involves a broader test than, say, dishonourable, it reflects a development in the standards of conduct to be expected of the court and its officers.”