Seeking clarity

It is often said that the construction of written contracts is a question of law. The proposition is however simplistic and to that extent incorrect.

It was established law in the mid-19th century that questions of construction inevitably depended upon matters of fact. The distinction was perhaps clearer because at that time the factual and legal components of the construction question were entrusted to different decision-makers—the judge and jury respectively. With the demise of the jury role, the English courts appeared to become occupied with the application of rules of construction for the trial judge to follow.

Common sense

Whether or not as a consequence of the increasingly important factual components of commercial contracts, by the mid-1990s the English courts clearly felt the need to put to one side the proposition that the issue in hand was simply one of law. The landmark decision in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 All ER 98, [1998] 1 WLR 896,