“whether it is entitled to enter upon [the Premises] …for the purpose of carrying out an environmental survey, which survey involves the drilling of 14 boreholes pursuant to the provisions contained in paragraph 13 of schedule 4 to the lease”
“On determination the Tenant shall yield up the Premises to the Landlord with vacant possession in a state of repair condition and decoration which is consistent with the proper performance of the Tenant’s covenants in this Lease having first carried out to the reasonable satisfaction of the Landlord such investigation and /or remedial works as a prudent owner or operator of the Premises would carry out to avoid the issue service or imposition of any notice order requirement or obligation by any competent authority or court of competent jurisdiction under Environmental Law or to secure compliance with any such notice order requirement or obligation served or made prior to Determination.” iii) In paragraph 5, provisions relating to the Use of the Premises. In paragraph 5.3 the Tenant covenants not to use the Premises for any purpose which may be or become a nuisance to or cause damage to the Landlord, or which might be harmful to the Premises. iv) In paragraph 9, provisions concerning the Tenant’s Legal Obligations and Necessary Consents. Paragraph 9.2 obliges the Tenant to immediately send a copy to the Landlord of any formal notice relating to the Premises which it receives from an Authority. v) Paragraph 13, which contains provision for the Landlord to enter the Premises during the period of the tenancy. It is headed “Entry by Landlord”
“Upon reasonable prior written notice (except in an emergency when no notice need be given) the Tenant shall permit the Landlord and those authorized by it at all times to enter (and remain unobstructed on) the Premises for the purpose of: 13.1.1 inspecting the Premises for any purpose, or 13.1.2 making surveys or drawings of the Premises or 13.1.3 complying with the Landlord’s obligations under this Lease or with any other Legal Obligations of the Landlord Provided that the Landlord shall cause as little interference and disturbance as is practicable and shall make good any damage caused forthwith and to the reasonable satisfaction of the Tenant” vi) In Paragraph 14, provisions relating to the Tenant’s liability to indemnify the Landlord. By Paragraph 14.1.5 the Tenant is liable to indemnify the Landlord for all costs expenses losses and liabilities incurred by the Landlord as a result of or in connection with “the management of the Premises (including without limitation the inspections under Paragraph 3.5.1 and the subsequent supervision of any work)”. vii) Paragraph 16, which is headed “Environmental Matters”
“I think I should preface my explanation of my reasons with some general remarks about the principles by which contractual documents are nowadays construed. I do not think that the fundamental change which has overtaken this branch of law, particularly as a result of the speeches of Lord Wilberforce in Prenn v Simmonds [1971] 1 W.L.R. 1381, 1384-1386 and Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 W.L.R. 989, is always sufficiently appreciated. The result has been, subject to one important exception, to assimilate the way in which such documents are interpreted by judges to the common sense principles by which any serious utterance would be interpreted in ordinary life. Almost all the old intellectual baggage of “legal” interpretation has been discarded. The principles may be summarised as follows. (1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract. (2) The background was famously referred to by Lord Wilberforce as the “matrix of fact,” but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man. (3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subject intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them. 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 [1997] A.C. 749.”
“17. I accept [counsel’s] submission that the relevant context is important and indeed that the court should avoid literal interpretation of words. 18. The most recent statement of that principle in the House of Lords can be seen in paragraphs 18 and 19 of the judgment of Lord Steyn in Sirius International Insurance Co (Publ) v FAIGeneral Insurance Ltd and others[2004] UKHL 54 2004 1 WLR 3251 where he said this: “18. The settlement contained in the Tomlin order must be construed as a commercial instrument. The aim of the inquiry is not to probe the real intentions of the parties but to ascertain the contextual meaning of the relevant contractual language. The inquiry is objective; the question is what a reasonable person circumstanced as the actual parties were, would have understood the parties to have meant by the use of specific language. The answer to that question is to be gathered from the text under consideration and its relevant contextual scene. 19. There has been a shift from literal methods of interpretation towards a more commercial approach. In Antaios CompaniaNaviera SA v Salen Rederierna AB[1985] AC 191 , 201, Lord Diplock, in an opinion concurred by his fellow Law Lords, observed; ‘if detail semantic and syntactical analysis of a word in a commercial contract is going to lead to a conclusion that flouts business common sense.’ In Mannai Investment Co Ltdv Eagle Star Life Assurance Co Ltd[1997] AC 749 , 771, I explained the rationale of this approach as follows: ‘In determining the meaning of the language of a commercial contract …. The law … generally favours a commercially sensible construction. The reason for this approach is that a commercial construction is more likely to give effect to the intention of the parties. Words are therefore interpreted in the way in which a reasonable commercial person would construe them. And the standard of the reasonable commercial person is hostile to technical interpretations and undue emphasis on niceties of language.’ The tendency should therefore generally speaking be against literalism. What is literalism? It will depend on the context. But an example is given in the Works of William Palely (1838 ed). vol III. P60. The moral philosophy of Palely influenced thinking on contract in the 19th century. The example is as follows: the tyrant Temures promised the garrison of Sebastia that no blood would be shed if they surrendered to him. They surrendered. He shed no blood. He buried them alive. This is literalism. If possible it should be resisted in the interpretative process. This approach was affirmed by the decisions of the House in Mannai Investment Co Ltd v Eagle Star LifeAssurance Co Ltd [1997 AC 749, 775 E-G, per Lord Hoffman and in Investors Compensation Scheme Ltd v West BromwichBuilding Society[1998] 1 WLR 896 , 913 D-E. per Lord Hoffman.” “18. The settlement contained in the Tomlin order must be construed as a commercial instrument. The aim of the inquiry is not to probe the real intentions of the parties but to ascertain the contextual meaning of the relevant contractual language. The inquiry is objective; the question is what a reasonable person circumstanced as the actual parties were, would have understood the parties to have meant by the use of specific language. The answer to that question is to be gathered from the text under consideration and its relevant contextual scene. 19. There has been a shift from literal methods of interpretation towards a more commercial approach. In Antaios CompaniaNaviera SA v Salen Rederierna AB[1985] AC 191 , 201, Lord Diplock, in an opinion concurred by his fellow Law Lords, observed; ‘if detail semantic and syntactical analysis of a word in a commercial contract is going to lead to a conclusion that flouts business common sense.’ In Mannai Investment Co Ltdv Eagle Star Life Assurance Co Ltd[1997] AC 749 , 771, I explained the rationale of this approach as follows: ‘In determining the meaning of the language of a commercial contract …. The law … generally favours a commercially sensible construction. The reason for this approach is that a commercial construction is more likely to give effect to the intention of the parties. Words are therefore interpreted in the way in which a reasonable commercial person would construe them. And the standard of the reasonable commercial person is hostile to technical interpretations and undue emphasis on niceties of language.’ The tendency should therefore generally speaking be against literalism. What is literalism? It will depend on the context. But an example is given in the Works of William Palely (1838 ed). vol III. P60. The moral philosophy of Palely influenced thinking on contract in the 19th century. The example is as follows: the tyrant Temures promised the garrison of Sebastia that no blood would be shed if they surrendered to him. They surrendered. He shed no blood. He buried them alive. This is literalism. If possible it should be resisted in the interpretative process. This approach was affirmed by the decisions of the House in Mannai Investment Co Ltd v Eagle Star LifeAssurance Co Ltd [1997 AC 749, 775 E-G, per Lord Hoffman and in Investors Compensation Scheme Ltd v West BromwichBuilding Society[1998] 1 WLR 896 , 913 D-E. per Lord Hoffman.”
“51…The fundamental point, however, made by Mr Marshall was that the judge’s use of a dictionary definition of “outstanding” was misguided when the key wording, he says, was “book or other debts”. 52. For my part I would accept the submission that, like any other clause in a contract, clause 2.2(ix) must be construed in its context. I would also accept the submission that it is not sufficient to have regard to dictionary definitions of particular words or expressions. However, that is not to say that it is not permissible to have regard to them. The definitions referred to by the judge were these. The definition of “outstanding” in the fifth edition of the Shorter Oxford Dictionary includes, “unresolved, pending; esp (of a debt etc) unsettled.”
“Prospective buyers who are contemplating buying or leasing development land or land which is to be used for an industrial use where chemicals are involved may consider undertaking certain precautions before completing the transaction. They may consider having an environmental survey undertaken.… Similar enquiries should be undertaken on behalf of a prospective lender… Lenders and landlords may consider taking covenants from their borrowers/tenants to cover some or all of the following matters: (a) not to bring hazardous material on to the property; (b) to comply with environmental law; (c) to remedy any breach of environmental law…; (d) to notify the lender/landlord of any circumstances that could give rise to liability for environmental damage; (e) to provide periodical environmental investigations and audits …; (f) reservation of a right for the lender/landlord to enter to inspect the property. An environmental audit consists of documentary evidence only; an investigation may include geological data obtained from e.g. soil samples.”