Meaning of ‘all’ and ‘any’
DOOBA DEVELOPMENTS v McLAGAN INVESTMENTS [2016]
As contract drafters will be all too well aware, the ‘devil is in the detail’ and none more so than here where the Court had to decide what some ambiguous wording meant.
Facts:
- Dooba Developments (“D”) entered into a contract to sell a plot of land to McLagan Investments (more commonly known as Asda) for £12million. The land was to be developed to include a retail superstore.
- The agreement required that four conditions had to be met before performance under the contract became due, one of which related to planning. There were individual deadlines for each condition, with a right to rescind (or cancel) the agreement if any of these conditions were not discharged by the applicable deadline.
- There was also a catch-all right to rescind the contract which occurred on a Longstop Date, being four years after the parties had exchanged contracts. This read (our emphasis added): “if all of the Conditions have not been discharged in accordance with this Schedule by the Longstop Date, then either Asda or [D] may rescind this Agreement…”.
- As at the Longstop Date, three of the conditions had been met but there was some debate about whether the ‘Highway Condition’ relating to the means of access to the site had been discharged.
- Relying on the catch-all right, Asda served notice on D to cancel the contract the day after the Longstop Date, arguing that not all of the conditions had been satisfied.
- The question was whether the catch-all right arose where any one of the conditions had not been discharged by the Longstop Date, or only where none of them had been satisfied by that date?
Decision:
- The Court decided that Asda could only cancel the contract if all four conditions had not been met by the Longstop Date. In this case ‘all’ meant ‘none’!
Points to note:
- The judgment seems difficult to justify and ultimately seems plainly wrong but it emphasises that clear drafting is absolutely key. By formulating the catch-all right in the way it was written, the drafter was inviting uncertainty. Undoubtedly when looking at the clause initially, there is reason to think twice about exactly what it means and, that being the case, it would have been far preferable to stick with: “if any of the Conditions have not been discharged…” (our emphasis added).
- This was an extreme example of the Court placing particular importance on the literal meaning of the exact words used and in particular the difference between the drafting:
- in relation to the individual termination rights applicable to each of the four conditions where the clause in question had used the word ‘any’; and
- in the catch-all termination right where the clause used the word ‘all’.
- The Court also placed little or no value on the commercial purpose of a longstop termination date.