Earlier this year in the US, a legal case revolved around the use of an Oxford comma. Not to be outdone, last month the Court of Appeal in England & Wales had to determine the meaning of the word ‘or’; in doing so, they embarked upon a semantic analysis of one of the most common words in the English language, flavoured by the Supreme Court’s most recent case on construction of contracts.

Summary

In Grimes v The Trustees of the Essex Farmers & Union Hunt [2017] EWCA Civ 361, the Court of Appeal held that a notice to quit, which had been served on the tenant’s old address, was not valid service where the tenant had previously notified the landlord that he had moved house. In doing so, the Court of Appeal overturned the decision of the Judge, who had held that the provisions of the lease meant that a notice could be validly served on the tenant at his old address throughout the duration of the term.

The Facts

In 2006 the tenant, Mr Grimes, entered into two consecutive agricultural tenancy agreements of farmland owned by his landlords, the Hunt. In the ‘Particulars’ at the start of the tenancy agreements, Mr Grimes listed his address as ‘Glebe Way’; however, Mr Grimes had already moved from Glebe Way to his new address, in ‘Maple Way’, over a year before the agreements were signed.

The agreements, as all well-drafted leases should, contained service provisions, which applied to both the landlord and the tenant. These were found at Clause 14, which provided that:

"14.1 The rules relating to the service [of] notices contained in Section 36 of the Agricultural Tenancies Act 1995 apply to any notice given under this Agreement so that any notice can be given to a person by delivering it to him or leaving it at his proper address or sending it to him at his proper address by any recorded delivery service...

14.2 Either party may serve any notice (including any notice in proceedings) on the other at the address given in the Particulars or such other address as has previously been notified in writing.”

(emphasis added)

Mr Grimes said that he had sent a short handwritten note in December 2006 to the Hunt, which provided details of his new (Maple Way) address. The Hunt denied receiving this note. When it came to terminating the tenancy agreement, the Hunt accordingly sent a Notice to Quit to the old (Glebe Way) address. The Judge found that the Dec ’06 Note had been sent to the Hunt, so that they were, or should have been, aware of the new address (a finding which was upheld on appeal).

The Hunt nevertheless argued that the leases, properly construed, allowed them to serve notices on the address specified by Mr Grimes. The Judge at first instance agreed and found that the tenancy had been properly terminated, even though the Notice to Quit had only been served at the old address. The Judge focused on “the literal meaning” of the words used in cl.14.2 and held that good service could be effected “either at the address stated in the lease or at the other address that has since been notified to the other party”. The Judge held that the ‘or’ in cl.14.2 provided the landlords with alternatives at which they could choose to serve; the old address was not substituted by the provision of a new one.

The Judge accordingly found for the Hunt and dismissed Mr Grimes’ claim for damages. Mr Grimes appealed to the Court of Appeal.

The Arguments

Or’ can, in normal parlance, be disjunctive:

It is day or it is night

Only one of these options is permissible: A or B, but not both. A logician would call this the ‘exclusive or’.

Or’ can also express two or more non-exclusionary alternatives:

"The appeal court will allow an appeal where the decision of the lower court was (a) wrong or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court." CPR r.52.21

If any one, or more, of these grounds are made out, the appeal will be allowed: A or B, or A and B. Our logician friend would call this the ‘inclusive or’; an equivalent to ‘and/or’.

In this case, Mr Grimes argued that the ‘or’ in cl.14.2 was not only disjunctive, but also substitutive in effect. Once he had notified the Hunt of his new address, they did not have a choice at which address to serve; the Hunt could only serve at the new address.

Mr Grimes argued that to hold otherwise would lead to a commercial absurdity, whereby a party may be validly served, throughout the duration of the lease, at an address which had been obsolete for years. He observed that the phraseology used in these leases was something of a ‘boilerplate’ provision utilised by draftsmen in various precedents and pro formas; if the Court did not allow the appeal, it could have ramifications on all manner of existing agreements.

The Hunt adopted the reasoning of the Judge at first instance. They argued that the wording of the clause gave the serving party a choice at which address to serve. They argued that commercial common sense ought not be elevated to an overriding criterion of construction, so as to undervalue the language used by the parties (see Arnold v Britton [2015] UKSC 36). The logic behind such an interpretation was one of certainty; it enabled a party to always have one valid address for service, irrespective of where the tenant (or landlord) moved to.

The Decision

The Court of Appeal (Beatson, Henderson, Macur LJJ) disagreed with the Judge, and allowed the appeal.

Henderson LJ (with whom the other Justices agreed), first considered whether ‘or’ was intended as an ‘exclusive or’, or an ‘inclusive or’, and held (at [29]) that:

“The normal meaning of the word “or” is disjunctive, although in a suitable context it can be read as equivalent to “and”, or as expressing a non-exclusionary alternative equivalent to “and/or”: see, for example, Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505 (HL) at 522B-E (per Lord Wilberforce) and 523E-H (per Lord Salmon). As a matter of ordinary language, therefore, it is natural to begin with a rebuttable presumption that clause 14.2 provides for service either at the address given in the Particulars or at such other address as has previously been notified in writing, but not at both”

Henderson LJ then went on to consider whether the ‘disjunctive or’, was substitutive, holding (at [30]) that:

“The parties cannot sensibly have intended that the serving party should continue to have the option of serving at the old address once he has been notified of the new one. That is to say, the parties must have intended that the new address should be a substitute for its predecessor, and not that it should offer a choice which did not exist before notification of the new address”.

The court considered that this was “a matter of commercial common sense”; the ‘or’ in cl.14.2 was clearly intended to be substitutive in effect. To enable a party to serve a valid notice on an old address, he observed, “would be a surprising conclusion to have to reach, particularly in the context of a contractual relationship that was intended to last for at least six years. “

In reaching this conclusion, the Court considered the well-known principles of interpretation of contractual documents and applied, for only the second time, the Supreme Court’s most recent decision on construction: Wood v Capita [2017] UKSC 24, in which the Supreme Court reconciled what certain commentators felt was the more literalist or textualistic approach of Arnold v Britton, with the more purposive or contextualistic approach of Rainy Sky SA v Kookmin Bank [2011] UKSC 50. In Wood v Capita, Lord Hodge observed that:

“The court's task is to ascertain the objective meaning of the language which the parties have chosen to express their agreement. It has long been accepted that this is not a literalist exercise focused solely on a parsing of the wording of the particular clause but that the court must consider the contract as a whole and, depending on the nature, formality and quality of drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to that objective meaning.”

In Grimes v Essex Hunt, Henderson LJ quoted this passage in full and observed that, had the learned Judge considered “the context of the contract as a whole”, instead of “focusing solely on a parsing of the wording of the particular clause”, he would not have fallen into error.

Discussion

Grimes v Essex Hunt provides a timely reminder (coming so soon after Wood v Capita) of the need to consider the literal meaning of words alongside the context in which those words are used.

In terms of the consequences of the decision as a whole, commentators will no doubt be pleased to see a reaffirmation of the purposive approach to construction and draftsmen will be happy that they will not need to re-write their sample leases. Interesting, too, are the comments of Henderson LJ that “the normal meaning of the word ‘or’ is disjunctive”, which was referred to in the judgment as a “rebuttable presumption”.

So, there we go.

In Grimes, the Court of Appeal held that, although ‘or’ could mean ‘or’ or ‘or’, it would normally mean ‘or’. In this case the ‘or’ plainly meant ‘or’. Clear as day (…‘or’ night?)

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