And then goes on to confess his love for dictionaries
Supreme Court rebel Lord Sumption has treated University of Oxford law students to a contract law-themed tirade against not one but two of his judicial peers.
The commercial barrister turned justice used his Keble College speech as an opportunity to discuss what he thinks is the right way to interpret a contract: by focusing on its language, rather than “some broader notion of intention.”
What’s clear from Sumption’s speech, delivered 8 May, is that he’s not too happy with past judges’ “ambitious” attempts to wave goodbye to language as a contract interpretation tool. And in explaining why, it seems Sumption couldn’t help but embark on some judge bashing.
Lord Sumption criticising his predecessors is fun pic.twitter.com/osvKOFAbev
— Conor James McKinney (@mckinneytweets) May 9, 2017
His principal target: Lord Hoffmann.
In his speech, wild-haired Sumption described the now 83-year-old retired judge as a “towering figure” in contract law’s misstep. This is because Hoffmann delivered the leading judgment in Investors Compensation Scheme (ICS), the case which seems to be the root of all the problems.
In ICS, Hoffmann laid to one side contract interpretation’s focus on language, and instead advocated a broader approach based on commercial intention and circumstances.
There are, in Sumption’s words, “a number of problems” with this approach. He said:
Language, properly used, should speak for itself and it usually does. The more precise the words used and the more elaborate the drafting, the less likely it is that the surrounding circumstances will add anything useful.
So passionate he feels about language, Sumption also made a strongly-worded case for the value of dictionaries in contract interpretation:
I find the belittling of dictionaries and grammars as tools of interpretation to be rather extraordinary. Language is a mode of communication. Its efficacy depends on the acceptance of a number of conventions that enable people to understand each other. Dictionaries and grammars are simply reference books which record these conventions. If we abandon them as the basic tools of construction, we are no longer discovering how the parties understood each other. We are simply leaving judges to reconstruct an ideal contract which the parties might have been wiser to make, but never actually did.
Sumption eventually concluded that Hoffmann’s approach “cannot possibly be right” — but not before he took aim at another of his judicial colleagues.
Lord Diplock, a now deceased former Law Lord, to be precise. Earlier on in his speech, Sumption considered Diplock’s judgment in the contract law case The Antaios.
In this case, Diplock said: “if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense”.
Sumption, who may or may not have been wearing a quirky tie at the time, concluded this view is “both unnecessary and wrong”. But he wasn’t done with Diplock yet. He left his deepest dig of all to the very end of his speech, the final paragraph of which reads:
The late Lord Diplock was a man who liked to be right, even by the self-confident standard of Her Majesty’s Judges. He once wrote a speech in an appeal on a question of contractual construction, in which he said that although he thought that his colleagues were wrong, he proposed to agree with them. This, he said, was because the House of Lords was the final court of appeal. From this it followed that a contract must mean whatever at least three law lords said it meant. As a canon of construction, this seems less than helpful. I hope that in future we can do better for you than that.
Read the speech in full here:
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