“Deliver economic benefits to businesses in the Westminster area by deploying a commercially fixed WIMAX network. Deliver social and economic benefits to residents to compliment [sic] the partner’s E-government initiative objective.”
“If connectivity is required beyond the pilot stage a commercial agreement will be drawn up between the two parties.”
“On completion of this agreement the partner agrees to: • Provide un-limited access to all its rooftops (potential host-sites) for spectrum analysis. • Grant URBAN WIMAX exclusive use, of any and all, of its rooftop assets for WIMAX (802.16) network deployment in the 2-5Ghz ranges of spectrums. This will be for a minimum period of 15 years from the date of this agreement.”
“…it is quite plain that the words “on completion of this agreement” did not mean “on the execution of this agreement” but meant: on completion of the initial stages of the pilot and roll-out, and arrangements being made for a final commercial agreement, then that is what the basis of the grant to Urban Wimax would be. In other words, it was intended that the commercial contract that would be drawn up would be on the basis of the minimum of 15 years from the date of this agreement, and deploying equipment in the 2-5Ghz ranges of spectrums.” • Provide un-limited access to all its rooftops (potential host-sites) for spectrum analysis. • Grant URBAN WIMAX exclusive use, of any and all, of its rooftop assets for WIMAX (802.16) network deployment in the 2-5Ghz ranges of spectrums. This will be for a minimum period of 15 years from the date of this agreement.”
“(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax: see Mannai Investments Co. Ltd. v. Eagle Star Life Assurance Co. Ltd.http://www.bailii.org/uk/cases/UKHL/1997/19.html[1997] AC 749 (5) The ‘rule’ that words should be given their “natural and ordinary meaning” reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Compania Naviera S.A. v. Salen Rederierna A.B. [1985] 1 A.C. 191, 201: ‘. . . If detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense.’”
“…it seems to me right to emphasise that the surrounding circumstances and commercial commonsense do not represent a licence to the court to re-write a contract merely because its terms seem somewhat unexpected, a little unreasonable, or not commercially very wise. The contract will contain the words the parties have chosen to use in order to identify their contractual rights and obligations. At least between them, they have control over the words they use and what they agree, and in that respect the words of the written contract are different from the surrounding circumstances or commercial commonsense which the parties cannot control, at least to the same extent. Particularly in these circumstances, it seems to me that the court must be careful before departing from the natural meaning of the provisions in the contract merely because it may conflict with its notions of commercial common sense of what the parties may have or should have thought or intended. Judges are not always the most commercially-minded, let alone the most commercially experienced, people, and should, I think, avoid arrogating to themselves over confidently the role of arbiter of commercial reasons or likelihood. Of course, in many cases, the commercial common sense of a particular interpretation, either because of peculiar circumstances of the case or because of more general considerations, is clear. Furthermore, sometimes it is plainly justified to depart from the primary meanings of words and give them what might, on the face of it, appear to be a strange meaning, for instance where the primary meaning of the words leads to a plainly ridiculous or unreasonable result.”
“…The poorer the quality of the drafting, the less willing any court should be to be driven by semantic niceties to attribute to the parties an improbable and un-businesslike intention, if the language used, whatever it may lack in precision, is reasonably capable of an interpretation which attributes to the parties an intention to make provision for contingencies inherent in the work contract the work contracted for on a sensible and businesslike basis.”
“13. In cases where the issue is one of construction the respondent often seeks to persuade the court that the case should go to trial by arguing that in due course evidence may be called that will shed a different light on the document in question. In my view, however, any such submission should be approached with a degree of caution. It is the responsibility of the respondent to an application of this kind to place before the court, in the form of a witness statement, whatever evidence he thinks necessary to support his case. Where it is said that the circumstances in which a document came to be written are relevant to its construction, particularly if they are said to point to a construction which is not that which the document would naturally bear, the respondent must provide sufficient evidence of those circumstances to enable the court to see that if the relevant facts are established at trial they may have a bearing on the outcome. 14. Sometimes it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial. In such a case it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction.”
“The 5GHz band, throughout the industry, relates to the whole of that band.”
“The trial judge will need to hear evidence as to what the phrase ‘2-5Ghz ranges of spectrums’ means …by reference to how that phrase (or similar phrase) are used throughout the telecoms/radio communications industries.”
“If the pilot was successful, the parties would implement and comply with their obligations under Part Three of the Memorandum and Part Four of the Memorandum.”
“The Parties acknowledge that this MOU is intended only to summarise the current understanding as to the Pilot WIMAX Network.”
“Testing of the performance of radio connections between the network and other properties and facilities as nominated by Westminster City Council.”
“…This is something on which disclosure and witness evidence will be needed in due course.” (para 14). Mr Lawrence then proceeds to take some linguistic points on the Council’s pleading and gives no explanation whatsoever as to how it is said that the working plan exhibited to Mr Kemal’s statement can possibly satisfy the contractual requirements. I do not regard that as either a proper or adequate response from a defendant facing an application for summary judgment and seeking to show a realistic chance of success on a very substantial financial claim. While the court must of course be careful not to conduct a mini-trial on an application underCPR Part 24 , as the Court of Appeal made clear in ED&F Man Liquid Products v Patel[2003] EWCA Civ 472 at [10]: “…that does not mean that the court has to accept without analysis everything said by a party in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporary documents. If so, issues which are dependent upon those factual assertions may be susceptible of disposal at an early stage so as to save the cost and delay of trying an issue the outcome of which is inevitable.”
“Is that what the instrument, read as a whole against the relevant background, would reasonably be understood to mean?” (para 21). Analysing Lord Hoffmann’s reasoning in Mediterranean Salvage & Towage Ltd v Seamar Trading & Commerce Inc[2009] EWCA Civ 531 ,(2009) 2 Lloyd’s Rep 39 at [15], Lord Clarke MR stated: “Moreover, as I read Lord Hoffmann's analysis, although he is emphasising that the process of implication is part of the process of construction of the contract, he is not in any way resiling from the often stated proposition that it must be necessary to imply the proposed term. It is never sufficient that it should be reasonable.”
“Is the proposed implied term necessary to make the contract work?”
“At the end of the Pilot Stage, the Parties will determine the successful deployment of the Pilot WIMAX Network in Westminster.”
“If Connectivity is required beyond the Pilot Stages a commercial agreement will be drawn up between the Parties.”