CA 2024 002410 - [2025] EWCA Civ 1374

In summary, Mr Jackson, on behalf of Westfield, submits that the judge was wrong to proceed on the basis that a zone of influence could never be reduced otherwise than by use of a new dataset and, as a result, to reject the plain and ordinary meaning of the words used in the Agreement. He says that there was no evidence to that effect, it was not supported by the Guidance Note itself, nor was it either party’s case but was taken up by the judge himself during closing submissions. He also says that such a conclusion is contrary to the Guidance Note itself and the way in which the Coal Authority responded to enquiries made by Mr Breathnach, on behalf of Westfield, and to RSK Geosciences, on behalf of Harworth. In addition, he seeks to rely on fresh evidence in this regard. He submits that the plain meaning of the words used, considered in the context of the Agreement as a whole and the factual context outlined by the judge at [47] of his judgment were clear. On an objective reading, the Released Payment Value became due if the Zone of Influence was reduced and not when mere permission was given for any particular use. He also submits that there is nothing in the language of the Agreement which speaks only to the area of the Zone of Influence as at the date of the Agreement. This all makes perfect commercial common sense. Accordingly, there was no reason to look for a purposive construction of the Agreement and in doing so, the judge gave clause 5 of Schedule 4 a meaning which was unnatural and contrary to its plain meaning.

Lastly, he submits that the judge’s reasoning at [51] – [53] neither reflected Westfield’s case nor the purposive construction at which he arrived.

Mr de la Piquerie, on behalf of Harworth, on the other hand, submits that the judge applied the appropriate principles of construction and arrived at a conclusion which gives effect to the plain agreement between the parties. He says that the Guidance Note is not inconsistent with the judge’s approach and that he was right to give little weight to Mr Breathnach’s attendance note and the fact that the parties had sought to persuade the Coal Authority that static caravans could be sited in the Zone of Influence. He says that the judge was entitled to form a view about the Coal Authority’s powers and having done so, he was right to conclude that on a literal interpretation, clause 5 of Schedule 4 of the Agreement was redundant. Furthermore, he applied the well known principles of construction contained in Arnold v Britton properly. Clause 3.1 of Schedule 4 should not be read in a vacuum and its natural and ordinary meaning should be assessed in the light of the other relevant provisions of the Agreement, the facts and circumstances known or assumed by the parties at the time the Agreement was executed and commercial common sense: Network Rail Infrastructure Ltd v ABC Electrification Ltd [2020] EWCA Civ 1645, [2020] 193 ConLR 66 per Carr LJ (as she then was) at [41].

He submits that the parties agreed that they would ask the Coal Authority whether it regarded the placement of static caravans within the Zone of Influence to be acceptable and if it did the Released Land Value would become due.

Lastly, in relation to the rectification claim, Mr de la Piquerie submits that the judge’s concern that the wording of the outward expression of accord was the same as clause 3.1 of Schedule 4 meant that rectification could not be granted, was misplaced, the outward expression of accord being merely evidence of common intention rather than defining it. In his Respondent’s Notice and Skeleton Argument Mr de la Piquerie stated that the common intention of the parties could be found at [21] and [56] of the judgment and in oral submissions he also referred us to [13] and [49].