CL-2022-000676 - [2025] EWHC 2486 (Comm)

The basic principles of construction do not need extensive discussion. As is to be expected, reference was made to the current core trinity of cases: Rainy Sky SA v Kookmin Bank[2011] UKSC 50 at [21] (per Lord Clarke), Arnold v Britton [2015] UKSC 36; [2015] 2 WLR 1593 at [15]-[23] (Lord Neuberger) & [76]-[77] (Lord Hodge) and Wood v Capita Insurance Services Limited[2017] UKSC 24 at [9]-[15]. A little variety was offered by reference to useful summaries by HHJ Pelling KC and approved by the Vos C in Lamesa Investments Ltd v Cynergy Bank Ltd [2020] EWCA Civ 821, 2021 2 All ER (Comm) 573 at [18] and ABC Electrification Limited v Network Rail Infrastructure Limited [2020] EWCA Civ 1645, at [18 (ii)].

However the issues between the parties did not require reference to these principles, but were more about how the specific contractual structure worked and which bits, if any, required to be read down.

There are a number of points of construction which are in dispute. These can be summarised thus:

It is fair to say that the first of these issues has only taken full form during the course of trial. However it was not, at least initially, suggested that this question was not capable of being fairly decided based on the evidence which was before the Court. While Medpro in closing somewhat resiled from its earlier acceptance of the issue as live, it is, though unpleaded, a point which was squarely raised by the start of trial and would have been explicitly pleaded had Medpro objected earlier. In addition (and as reflected by Medpro’s initial reaction to it) it is not an issue which would have caused prejudice such as to make it appropriate to shut the issue out. Accordingly that issue is considered below.