“We confirm that each condition precedent specified in clause 4 (Conditions of utilisation) is satisfied on the date of this Utilisation Request”
“Interpretation is the ascertainment of the objective meaning of the language in which the parties have chosen to express their agreement, in its documentary, factual and commercial context. That meaning is what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean. Both the text and the context are tools in the process of interpretation. The text must be assessed in the light of (i) the natural and ordinary meaning of the words, (ii) any other relevant provisions of the contract, and (iii) the overall purpose of the clause and the contract. The factual context includes facts and circumstances known or assumed by the parties at the time that the document was executed. It also includes background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract. The process is a unitary and iterative one by which each suggested interpretation is checked against the provisions of the contract and its commercial consequences are investigated. The weight to be given to each will depend on a number of factors, including the formality of the agreement and the quality of the drafting. If the language of the contract is unambiguous the court must apply it. But if there are two possible interpretations, the court is entitled to prefer the interpretation which is consistent with business common sense as at the date of the contract and to reject the other. Nevertheless, the commercial consequences of one interpretation as against another do not detract from the importance of the words. In exceptional circumstances the court may conclude that the parties have used the wrong words. If it is clear what the error is, and the nature of the correction required, the court may correct it. In carrying out its task, the court must disregard the parties’ subjective intentions, and (except for limited purposes) the negotiations that preceded the making of the contract.”
“Where one party voluntarily accedes to a request by the other that he should forbear to insist on the mode of performance fixed by the contract, the court may hold that he has waived his right to require that the contract be performed in this respect according to its original tenor.”
“We confirm that each condition precedent specified in clause 4 (Conditions of utilisation) is satisfied on the date of this Utilisation Request”
“...There is no absolute rule of law or practice which precludes an amendment to rely on a cause of action which has arisen after the commencement of the proceedings in circumstances where (but for the amendment) the claim would fail. The court has a discretion whether or not to allow the amendment in such a case; a discretion which is to be exercised as justice requires. In the present case I have no doubt that, had the claimants sought to amend their particulars of claim (so as to rely on the demand of13 March 2000 ) within the period from 12 April to30 August 2000 , they should have been permitted to do so. There was no reason why they should have been required to commence new proceedings.”
“Deburo shall not be liable under the Guarantee unless the Loan to Value exceeds 60 per cent”
“[with object]formally request or demand; say that one owns or has earned (something)”. ). To take but one example, it is common parlance to refer to “making a claim” under an insurance policy, which refers to the process of submitting a request for payment in accordance with the terms of the policy. In the context of an obligation which is expressed to be triggered by demand, a ‘claim’ is ‘made’ on the instrument in question by making a demand for satisfaction. By making the Second Guarantee Demand, Cs made a further “claim” against Deburo and the LTV Condition will have been satisfied at the date of that claim if (as it did) the Loan to Value then exceeded 60 per cent. 74.2 Second, and relatedly, the words “make a claim” can also naturally encompass a new claim brought within existing proceedings by amendment rather than merely the initial step of issuing a claim form. When Cs amended their Particulars of Claim to rely on a new head of claim arising from the Second Guarantee Demand, they made a further “claim” against Deburo under the Guarantee. Had the drafter of the Guarantee intended to produce the result contended for by Deburo (i.e. that any amendments to the claim after issue are irrelevant), they would have needed to be considerably more specific and to have expressed the LTV Condition in terms such as: “[RS Lux II] shall only be entitled to issue proceedings against Deburo to enforce this guarantee... at any time that the Loan to Value exceeds 60 per cent”. 74.3 Third, Deburo’s construction of the LTV Condition would not prevent Cs from making a demand for payment or taking other steps to enforce the Guarantee short of bringing proceedings under the guarantee itself, even if the Loan to Value was below 60 per cent. For example, on Deburo’s construction the LTV Condition would not prevent Cs making a statutory demand for payment under the Guarantee and then commencing winding up proceedings in reliance on the failure to satisfy that demand, since neither step would entail Cs issuing proceedings to enforce the Guarantee. This cannot have been intended by the drafter of the Guarantee and the result would be contrary to the obvious purpose of the LTV Condition, which, as set out above, is to prevent Deburo from bearing liability under the Guarantee when the Loan to Value does not exceed 60 per cent. 74.4 Fourth, Deburo’s construction does not give effect to the words “at any time”