Cantor Fitzgerald & Co v. Yes Bank Limited: More Syntactic Ambiguity

This week tipster extraordinaire Glenn West mentioned to me an opinion of the England and Wales Court of Appeal, Cantor Fitzgerald & Co v. Yes Bank Limited [2024] EWCA Civ 695.

This case involves syntactic ambiguity—confusion over what modifies what. I’ve written at length about syntactic ambiguity, and the lesson for drafters is always basically the same, so I thought I had reached the point of diminishing returns. (For an assortment of my writings on syntactic ambiguity, see these blog posts. And there’s a chapter on the subject in A Manual of Style for Contract Drafting.) But if this case is of interest to Glenn, it’s of interest to me. So here goes:

This is the language at issue (emphasis added):

We have been advised by the Company that it contemplates one or more financing(s) through the private placement, offering or other sale of equity instruments in any form, including, without limitation, preferred or common equity, or instruments convertible into preferred or common equity or other related forms of interests or capital of the Company in one or a series of transactions (a “Financing”).

Does the word private qualify just placement? Or does it also qualify offering or other sale? The Court of Appeal opted for the latter, offering the following explanation:

While … there is no firm grammatical rule to the effect that an adjective or determiner at the start of a list of nouns qualifies them all, the nature of the list may well indicate that it does. At the least, unless something in the content of the list or another adjective or determiner within the list suggests otherwise, the reader will naturally tend to assume that an adjective or determiner at the start of a list qualifies the entirety of it.

I’ll limit myself to two points, one conceptual, the other technical.

First, the conceptual point: What is the court’s basis for saying that “the reader will naturally tend to assume that an adjective or determiner at the start of a list qualifies the entirety of it”? The court’s use of the booster naturally signals that they’re making stuff up. Even if you assume there’s some basis for this notion, it’s important to bear in mind the context. This dispute is over two alternative meanings. By referring to what a reader might assume, the court is in effect in invoking a “canon of construction”—a quick-and-dirty way to select a winner among alternative possible meanings. (I prefer “tie-breaker”, as being less pompous.) You might as well play rock scissors paper.

And second, the technical point. The court acknowledges that the context might suggest that a qualifier doesn’t qualify the entire list. In this case, private does modify placement, and it could modify offering, but it’s unpromising as a candidate to modify other sale. It would be awkward to say one or more financing(s) through the private other sale of equity instruments, as opposed to other private sale of equity instruments. That’s reason enough to reject the idea that private modifies the entire list. If you argue that you can exclude other from what’s being modified, you’re ignoring semantics and rigging the game in your favor.

Let me demonstrate that with an example from everyday English. A sign in a food store says, Try our chocolate croissants, profiteroles, and other baked goods! The word chocolate modifies croissants, it could modify profiteroles, but it would be awkward to have it modify other baked goods: it’s unlikely anyone would ever say chocolate other baked goods, as opposed to other chocolate baked goods. The more natural interpretation is that the store also wants you to try its apple pie.

[Postscript: After I published this post, I recalled that in 2023 I had written about the opinion of the Commercial Court in this case. See this blog post. This makes two points about my writing. First, after around 2,800 blog posts, I can no longer count on remembering what I’ve previously written about. And second, if something is worth writing about, often it’s worth giving it a fresh take, because you might have something extra to say.]