English Courts—A Hotbed of “Endeavours” Insanity!

I received the following from reader Nigel Madeley, of the U.K. law firm Addleshaw Goddard:

Ken,

I know this one raises your blood pressure a little.

A case about nuisance by vibration—an adjoining occupier sought an injunction against a developer.

The injunction was awarded. The developer had to keep to agreed vibration limits; if it exceeded them, it had the burden of showing that it’d taken “all proper and reasonable steps” to prevent that excess. But the judge refused to give the occupier an injunction in the precise terms it had sought—that the developer take “all reasonable endeavours” to prevent the excess, because “all reasonable” was more onerous than “reasonable” and approached “best”. The judge followed previous authority by requiring the injunction to refer to “all proper and reasonable steps.”

So, we seem to have 4 levels, in descending order:

  • Best
  • All reasonable
  • All proper and reasonable
  • Reasonable

So “proper” appears to qualify “all reasonable” to make it more that “reasonable” and less than “all reasonable”.

A bit later in the judgment, the judge referred to the developer taking “all reasonable and necessary precautions” to prevent water ingress. He didn’t expand on where that fitted in the hierarchy. (In fairness it’s not a reserved judgment; in other words, it was given hours—not days or weeks—after the end of the trial.)

I inherited the use of “all reasonable and commercially sensible endeavours ” in our precedent subject to planning contracts. I’ve removed that on the basis that there’s enough confusion already without adding to it.

The case is Hiscox Syndicates v The Pinnacle Limited.

Hope you’re keeping well,

Best wishes,

Nigel.

PS I spy with my little eye …

… some angels dancing on a pin-head.

I confirmed that Nigel wasn’t making this up to mess with my mind. (Click here to see a brief report on this case from the Times of London.)

When it comes to this issue, at least, U.S. judges come across as paragons of clear thinking when compared to English judges.

If you don’t mind, I’m now going to lie down in a darkened room. (If you’re new to this blog and are wondering what my problem is, you might want to use this site’s “search” function to search for the word “efforts”.)

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.