I wrote last time about Mid Essex Hospital Services v Compass Group (trading as Medirest). Others have commented about the case and how the Court Appeal interpreted the good faith clause. What has received less attention was the emphasis on punctuation and how that, and an imaginary caesura (see below), was the basis for the decision.
A cobbled together contract
In Medirest, both the High Court and Court of Appeal agreed that the contract was a mess. It was based on a standard NHS form into which a PFI mechanism has been added. The trial judge observed that “The cobbled together nature of the contract did not assist its use by either Medirest or Trust staff” and Jackson LJ stated that “The package of contract documents contains some puzzles and inconsistencies which gave rise to conflict between the parties”.
Against that background, it is not surprising that the good faith clause was not as clear as it could be.
Two possible interpretations
The good faith argument rested on the wording of clause 3.5. In Jackson LJ’s view, the clause was a jumble of different statements set out in an incoherent order. He observed that “It has different possible meanings, depending upon where one places the caesuras and what imaginary punctuation one inserts”.
Caesurae are not often referred to in legal writing. Wikipedia describes a caesura as a “complete pause in a line of poetry or in a musical composition”, often used in Greek and Latin verse.
How does a caesura affect the interpretation of contract? It means an imaginary pause.
Here’s an example of a phrase that changes its meaning, depending where the reader puts the caesura: a road sign stating “Slow children crossing”.
In Medirest, in clause 3.5, the placing of the imaginary pause and lack of punctuation determined whether the contract had a wide and general good faith duty (as the trial judge found) or a narrow good faith duty limited to the two specific purposes set out in the clause (as the Court of Appeal found). By adding punctuation and numeration, the judgment identifies the two possible interpretations and chooses one as the correct meaning.
Punctuation, commas and full stops
In 1918, determining the meaning of a deed made in 1894, Lord Atkinson stated that “Punctuation is a rational part of English composition, and is sometimes quite significantly employed. I see no reason for depriving legal documents of such significance as attaches to punctuation in other writings” (Houston and Others v Burns and Another  AC 337).
However, it is still about the substance of the words. In Scheldebouw v St James Homes  EWHC 89 (TCC), the court held that the presence of certain full stops could not override the obvious meaning of a clause. Similarly, in Dorset County Council v Southern Felt Roofing (1989) 48 BLR 96 there was a debate about the absence of a comma between the words “loss” and “claim”, since the comma did appear in the original standard form. The trial judge rejected an argument made with “more courage than manifest conviction” that this was a deliberate omission with the intent of referring to a “loss claim”.
Legal documents are not the impenetrable documents they used to be over 100 years ago and the Plain English Campaign is a good thing. But punctuation is still important, if the battle over the apostrophe being dropped by the North East Lincolnshire Council is anything to go by. The lesson is, as ever, to get the words right and not to forget the significance of punctuation.
I’ll leave you to make up your own minds with this final example: “Lawyers give poor free legal advice”.