Late contenders for the most entertaining judgment of 2009

Sir David Edward, QC delivered the opinion of the court in the Extra Division decision in Multi-Link Leisure Developments Ltd v North lanarkshire Council on 30th December 2009, and made a late bid for the coveted award of Scots Law News's most entertaining judgment of the year. That this is achieved in a judgment on the interpretation of a clause granting an option in a contract of lease demonstrates its mastery.

Sir David begins his substantive discussion by considering the oft-cited passage on contractual interpretation by Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, at 913.

"[23] We should say at the outset that we do not see the relevance for the present case of the observations of Lord Hoffmann in Investors Compensation Scheme Limited (supra) and Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251, which seem to be invoked – almost as a matter of ritual – in all cases involving construction of contracts. For our part, we have considerable sympathy with Professor McBryde's discussion of the problems that 'the Hoffmann approach' (in so far as it truly innovates on the previous law) may create for lawyers and clients (see McBryde The Law of Contract in Scotland, 3rd edition, paragraphs 8-25 – 8-27).

"[24] In any event, Lord Hoffmann's observations were made in the context of commercial contracts, whereas this case is about a Scottish lease of heritable property. The man on the Jubilee line on his way to Canary Wharf has less to say to us in this context than the Scots conveyancer with whose mindset we are more familiar."

The consideration of the clause, an option granted in a lease with an ish of fifty years, prompts some observations on what parties can really have in contemplation at the time of contracting:

"[29] We do not know – and the deed does not reveal – whether, in 1999, the subjects had any foreseeable development potential other than for development as a golf course. It is possible that, at that time, they had no other predictable use. But we should bear in mind that the lease was for a period of fifty years and that, in the nature of things, much might happen in that relatively long time frame to alter the value of the subjects. (The attractions of playing Augusta indoors with Wii may render some golf courses redundant on the slopes of Cumbernauld and elsewhere.) Why should it be assumed that the parties intended that all uses other than agriculture or open space that might become possible or desirable in the space of fifty years were to be left out of account?"

A search of the Scottish courts website confirms our suspicion that this is the first Scottish judicial reference to a Wii. And while there have been earlier references in English cases (eg British Board of Film Classification, R (on the application of) v Video Appeals Committee [2007] EWHC 3198 (Admin) (21 December 2007), and CDV Software Entertainment Ag v Gamecock Media Europe Ltd & Ors [2009] EWHC 2965 (Ch) (20 November 2009)) and in Northern Ireland (in McGrady v The Welcome Organisation [2009] NIIT 935_08IT (18 May 2009)) this is so far as we are aware the first wholly superfluous reference. Unless, of course, as Esther Rantzen used to advise on That's Life, you know different.

The principal competitor for most entertaining judicial comment was Lord Gill's pithy summary of transport developments in Edinburgh in Assessor for Lothian v Ministry of Defence, Army careers office [2009] CSIH 89 which considered the rating revaluation of properties in Shandwick Place in Edinburgh.

"The tramway project

"[3] From 1871 tramcars made their way along Shandwick Place. In 1956 the tram lines were dug up in the name of progress and the tramcars were replaced by buses.

"[4] Between March and July 2008 Shandwick Place was dug up in the name of progress for the laying of a tramway."