Reciprocal cooperation and purposeful meaning

Reciprocal cooperation and purposeful meaning +

29 April 2018

Eamonn Conlon, A&L Goodbody

MAIN-40322835-1

2

3

“… shall support reciprocal co-operation for the Contract’s purposes …”

What are the contract’s purposes?

1.2.1 The parties intend the Contract to be given purposeful meaning for efficiency and public benefit generally and as particularly identified in the Contact.

MAIN-40322835-1

Co-operation

4

Airscape v

Heaslon

Properties

[

2008] IEHC

implied ‘general’ duty to co-operate to secure performance of a contract is fundamental: compliance is a condition precedent.

“A

single transient instance of non co-operation would not, I think, be sufficient to be deemed a breach of the implied term. Conversely, a persistent single episode, or multiple or successive instances of non-co-operation might indeed be sufficient to be deemed a breach of the implied term.”

move out of the way

MAIN-40322835-1

Mutual trust and co-operation

5

“

MAIN-40322835-1

NEC4 clause

10.2

“The

Parties,

the

Project Manager

and the

Supervisor

act in

a spirit of mutual trust and co-operation.”

Mutual trust and co-operation

6

Costain v Tarmac Holdings

[

2017] EWHC (TCC)

Does little more than to say expressly what

Vinelott

J thought was implied into all construction contracts in

Merton LB v Stanley Hugh Leach

(1985) ChDdon’t hinder or prevent

do whatever is necessary to enable the other party to perform

MAIN-40322835-1

Mutual trust and co-operation

7

“Taking the obligation of mutual trust and co-operation (or even good faith) at its highest, it meant that, in the present case, the defendant could not do or say anything which lulled the claimant into falsely believing that the time bar in clause 93 was either non-operative or would not be relied on in this case. For this purpose, I am also prepared to accept that this obligation would go further than the negative obligation not to do or say anything that might mislead; it would extend to a positive obligation on the part of the defendant to correct a false assumption obviously being made by the claimant, either that clause 93 was not going to be operated or that the time bar provision was not going to be relied on. But beyond that, on any view of clause 10.1, there can have been no further obligation, because otherwise the provision would have required the defendant to put aside its own self-interest

.”

-

Coulson J

MAIN-40322835-1

Mutual trust and co-operation

8

MAIN-40322835-1

Good faith : relational contracts

9

Flynn v Breccia [2017] IECA

no implied general duty

of good faith

and fair dealing in Irish law

Monde Petroleum v

Westernzarros

[2016] EWHC (Comm)validity of termination is assessed according to the contract terms and not by whether it was done in good faith

issue not included in appeal [2018] EWCA

MAIN-40322835-1

10

MAIN-40322835-1

Purposeful meaning

11

1.2.1 The parties intend the Contract to be given purposeful meaning for efficiency and public benefit generally and as particularly identified in the Contract.

4.14.1 The Parties intend all communications between them to be interpreted purposefully, having regard to the Contract’s purposes.

4.7.4 The Employer’s Representative’s period for objection is 10 working days from when the Employer’s Representative has received from the Contractor enough information to make a purposeful review of the matter submitted should it wish to make one.

MAIN-40322835-1

12

MAIN-40322835-1

Purposeful

13

Arbitration clause given “broad,

purposeful

practical meaning” in

Gulliver v Brady

[2003] IESC

Leo Laboratories v Crompton

[2005] IESC Fennelly J

MAIN-40322835-1

Purposeful

14

“… a constitution is the product of political consensus and evidence of that consensus is of particular importance to giving the terms of the Constitution the generous

purposeful

interpretation that is

required.”

Christie v Ingraham

[2008] SC Bahamas, Hall CJ, citing:

“The

language of a Constitution falls to be construed, not in a narrow and legalistic way, but broadly and purposively

,

so as to give effect to its

spirit.”

AG v Whiteman

[1991] PC Lord Keith

MAIN-40322835-1

Purposeful

15

Section 5(1), Interpretation Act 2005

In

construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction

) -

(

a) that is obscure or ambiguous, or

(

b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of… the Oireachtas

…

the provision shall be given a construction that reflects the plain intention of the

Oireachtas

… where

that intention can be ascertained from the Act as a whole

.

If these conditions don’t apply, literal, not

purposive

meaning is to be used.

Monaghan v

An

Bord

Pleanála

[2013]

IEHC

MAIN-40322835-1

Purposive

16

“The Court cannot adopt a flexible or

purposive

interpretation of a provision designed to protect personal liberty, all the more so when such an interpretation would do violence to the clear language of the

Oireachtas

.”

-

Kadri

v Governor of Wheatfield Prison [2012] IESC, Fennelly J

MAIN-40322835-1

Purposive

17

“

the

provision of education – not least in the field of science, technology and innovation – is of the first public importance. The work of the Institute opens this world to a new generation of young people and it would scarcely be an exaggeration to say that the future of the country is contingent on the education of that new generation. Accordingly, it is in that

purposive

sense – as mandated by s. 5(2)(a) of the Act of 2005 – that it can be said that the Institute is a voluntary organisation within the meaning of art. 157(1) of the

[Planning and Development] Regulations

of 2001 since, although not directly State controlled,

subvented

or run, its contribution to the social and intellectual capital of the State is enormous

.”

- Cork Institute of Technology v An Bord Pleanála

[2013] IEHC, Hogan J

MAIN-40322835-1

Purposeful meaning

18

1.2.1 The parties intend the Contract to be given purposeful meaning for efficiency and public benefit generally and as particularly identified in the Contract.

4.14.1 The Parties intend all communications between them to be interpreted purposefully, having regard to the Contract’s purposes.

4.7.4 The Employer’s Representative’s period for objection is 10 working days from when the Employer’s Representative has received from the Contractor enough information to make a purposeful review of the matter submitted should it wish to make one.

MAIN-40322835-1

19

“That

the study of credible commitments has been relatively neglected is explained by the

assumption

, common to both law and economics, that the legal system enforces promises in a knowledgeable, sophisticated, and low-cost way. Albeit instructive, this convenient assumption is commonly contradicted by the facts – on which account additional or alternative modes have

arisen.”

- Oliver Williamson

MAIN-40322835-1

20

“Effective partnering does not rest on contracts. Contracts can add significantly to the cost of a project and often add no value for the client. If the relationship between a contractor and employer is soundly based and the parties recognise their mutual interdependence, then formal contract documents should gradually become obsolete. The construction industry may find this revolutionary. So did the motor industry, but we have seen non-contractually based relationships between Nissan and its 130 principal suppliers and we know they work.”

- Rethinking

Construction 1998

MAIN-40322835-1

Relational contracts

21

MAIN-40322835-1

-

22

MAIN-40322835-1

23

MAIN-40322835-1

BIM: some legal issues

24

MAIN-40322835-1

25

MAIN-40322835-1