Commas

[liadnan]

I wrote about this on Geeklawyer's forum yesterday, and the inestimable Charon QC picked it up from there and wrote about it too, but I thought I'd note it here as well: compare and contrast:

Subject to the termination provisions of [the SSA], [the SSA] shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one year prior notice in writing by either party.

with

Subject to the termination provisions of [the SSA], [the SSA] shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms unless and until terminated by one year prior notice in writing by either party.

The first was what a telecomms infrastructure contract in Canada actually said: the regulatory tribunal charged with resolving the resulting dispute decided that strict construction was appropriate and said it didn't mean the same as the second. (Thanks to Jules on the forum for the link to the actual judgment.)

It is thought the difference has cost Rogers Communications, who appear to have argued for purposive construction in the light of the matrix of fact blah (a la ICS, where the trial judge and eventually Hoffmann dragging the rest of the House of Lords along with him, read the phrase "Any claim (whether sounding in rescission for undue influence or otherwise)" as "Any claim sounding in rescission (whether for undue influence or otherwise)" because the strict construction was commercial nonsense*) ie they wouldn't have been so bonkers as to sign up to that, CA$2.13M. One suspects appeal or judicial review is being contemplated, this is, after all, merely a first instance regulatory tribunal decision, but interesting nonetheless...

*per Hoffmann in the ICS judgment: "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." It's worth noting, however, that as Hoffmann pointed out, what was actually written in the ICS contract was on any construction rather weird: what would be the point of singling out claims for recission for undue unfluence if the clause was to cover "any claim"? ICS is great, if only because Alice in Wonderland is cited by Hoffman as authority: "Alice and Humpty Dumpty were agreed that the word "glory" did not mean "a nice knock-down argument." Anyone with a dictionary could see that. Humpty Dumpty's point was that "a nice knock-down argument" was what he meant by using the word "glory." He very fairly acknowledged that Alice, as a reasonable young woman, could not have realised this until he told her, but once he had told her, or if, without being expressly told, she could have inferred it from the background, she would have had no difficulty in understanding what he meant.". While I'm generally in favour of strict grammar, that approach does, as transactional lawyers know better than I, show more appreciation of the way in which heavy commercial contracts come into being. The contrary argument, of course, is commercial certainty: the whole point of such heavily drafted serious contracts is that they should mean precisely what they say.

Comments

[ajva.livejournal.com]

Dear God, you lawyers don't half earn your keep...

[liadnan]

We try...
We're very trying.

[nicnac.livejournal.com]

Back to spirit rather than letter.

[liadnan]

In this country, in the ICS case yes, but evidently not in Canada.
But it's a dodgy road to go down. Certainly if I draft something I hope it says precisely what I mean: I hope I wouldn't have put that comma into such a draft. And the idea of non-contentious drafting is to avoid litigation by being utterly clear in what you mean, which is more supported by going for strict interpretation when litigation actually happens nonetheless than it is by looking for the spirit. (The ICS case is slightly anomalous in that the clause in question was self-evidently nonsensical as it stood: something had cocked up, the question really was what.)

[eccles.livejournal.com]

Sounds like Hoffman was bringing in a bit of his patent claim interpretion experience there. Talking of which, apparently the CoA was a bit of fun last Thursday and Friday for the Patent Office.

[liadnan]

Lennie sat as a patents court judge? I didn't know that. Mind you, the man's done everything... I am in the pupillage line of succession from him I believe (which sadly indicates nothing). Haven't heard anything about last week: I rely on Geeklawyer to keep me up with IP litigation and I think he's on holiday.

[eccles.livejournal.com]

Had me worried for a moment, yeah he has done one or two quite big decisions mostly in the House of Lords these days obviously:

Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2005] RPC 9
Improver Corporation v Remington Consumer Products Ltd [1990] FSR 181
Merrell Dow Pharmaceuticals Inc v H N Norton & Co Ltd [1996] RPC 76
SmithKline Beecham Plc’s (Paratoxetine Methanesulfonate) Patent [2006] RPC 10
Biogen Inc. v Medeva plc [1997] RPC 1
SABAF SpA v MFI Furniture Centres Ltd [2005] RPC 10

As for CoA, we had a couple of appeals last week and one of them decided to settle at 2am day of the trial which apparently caused all sorts of problems for counsel.

[susumu.livejournal.com]

While I spotted the missing comma I don't really understand the difference. Can you give us a clue?

[liadnan]

Option 1 allows for termination at any time from the start of the contract on a years notice: because of the last comma the last bit following it ("unless and until ... party") relates to both previous subclauses, whereas without a comma it would relate only to the immediately preceding sub-clause. I think Option 2 -what Rogers were effectively arguing it should have been and should be interpreted to mean- would mean five years with no chance of termination, then another five years unless one year before the end of the first term there has been notice to terminate, and so on and so on. So they would only get a chance to end it by giving notice after four years, and then every fifth anniversary thereafter. I think Jules on the forum was arguing that after the first five years you'd always be able to terminate on one years notice but I may have misunderstood him.

[susumu.livejournal.com]

Ta

[f4f3.livejournal.com]

It really worries me that I noticed this on first reading. I thought I was cured...

[liadnan]

You never escape...

[lizw.livejournal.com]

... and most of my students don't have a snowball-in-hell's chance of understanding the difference, because I appear to be the only person who has ever attempted to teach them grammar, and there's only so much I can do in a two-hour session. It's very depressing.

[liadnan]

I can imagine... But will it be the killer for them getting tcs? Should it be?

On a non-legal education front I am reminded of a chapter in a book by the late Austen Kark (husband of Nina Bawden): he went to evening classes to learn modern Greek (the book is about living there) and was, along with the teacher, shocked when they had to spend a large part of the classes teaching basic principles of grammar before getting on to actually teaching modern Greek, because the other students -undergraduate to middle age- didn't have a clue about basic tenses etc.