A reader sent me a link to this article on Lexology (free registration required). It’s about that old favorite, best endeavours, and it discusses an April 2012 case before the Court of Appeal, Jet2.com Limited v Blackpool Airport Limited (copy here), that involves a dispute over what a contract party was required to do to comply with a best endeavours provision. (Endeavours is the English equivalent of efforts.)
According to the article, “Case law indicates that there is a spectrum of endeavours obligations, with ‘best endeavours’ representing the most stringent obligation, ‘all reasonable endeavours’ probably occupying some sort of centre ground and ‘reasonable endeavours’ being the least stringent. This seems straightforward enough.”
In fact, it’s anything but straightforward—it makes no sense. As a matter of idiom and contract-law logic, such distinctions are untenable. Sure, there’s English caselaw that ostensibly supports those distinctions, but it’s nonsensical. I’ve written about that caselaw (here and here). I’ve also written about a comparable Canadian case (here). Nevertheless, the views expressed in the Lexology article are entirely consistent with other law-firm analyses that I’ve seen.
But I’m not going to rehash arguments I’ve laid out more fully elsewhere (at greatest length in MSCD). Instead, I want to point out that the Jet2.com case subverts the premise of the Lexology article, in that the court doesn’t get into any discussion of gradations of endeavours provisions.
Instead, in paragraph 15 the court say that the “natural meaning of [‘all reasonable endeavours’] is that BAL would do its best to ensure that charges made for ground services would support Jet2’s low-cost pricing model.” (Emphasis added.) In other words, best doesn’t represent a higher standard than reasonable.
Furthermore, in paragraph 16 the court notes that the party under the best endeavours obligation argued, as a fallback argument, that “the obligation was no more than to use best or all reasonable endeavours (which it was agreed meant the same thing).” The court apparently thought that to be self-evident, as it offered no commentary.
In other words, far from reinforcing caselaw that attempts, and fails, to find a logical basis for distinguishing between different endeavours standards, the approach of the Jet2.com court is reassuring rational. Given that the Court of Appeal is more senior than the High Court of Justice, which handled the two other cases mentioned above, perhaps the Jet2.com case is a sign that there’s hope for a rational approach to endeavours provisions.
I offer no opinion as to whether it made sense for the court to hold that to comply with the best endeavours obligation, the airport in question had to accept arrivals and departures of flights outside the airport’s usual hours. That’s because my focus is on how to avoid disputes. From that perspective, the airport created the mess by entering into a contract that seems to have been insufficiently specific.
When it comes to endeavours provisions, if you want to stay out of trouble, then to the extent possible address precisely (rather than resorting to the vagueness of endeavours standards) all issues that might result in a dispute, and address anything else using only reasonable endeavours, as its not conducive to confusion. And certainly don’t use different endeavours standards in the same contract. That’s what the contract at issue in the Jet2.com case did, and the court showed admirable restraint in not using that as an excuse to dream up distinctions. These recommendations apply equally to using efforts standards.
Perhaps you might want to do a little experiment: ask your English counsel what they recommend when it comes to best endeavours obligations, and see what they say.
By the way, by commenting on the Lexology article, I’m not looking to throw rotten tomatoes at anyone. It’s just that for the marketplace of ideas to function, you have to counter with your own ideas those ideas that you think are not so helpful. May the best ideas win!
3 thoughts on “More Unhelpful Advice on “Best Endeavours””
Ken, as you say, this case was not about the question of whether there are gradations of efforts. My reading of the article is that the case was a recent case and therefore they wanted to mention it, and used it as a topical peg on which to hang an article about the more general subject of efforts or endeavours.
Just as I don’t think the main themes of the article are supported by this case, nor do I think that some of your conclusions above are supported by the case. In relation to your commentary on paragraphs 15 and 16 it seems to me that, once counsel have agreed that “all reasonable” means the same as “best” – a proposition for which there is some English case authority – that points goes away in the case, and the court no longer needs to question it. That doesn’t necessarily mean, in your words, that it is “self evident”.
In a case where gradations are not at issue, and where the court has been steered by counsel not to make fine (and you would say, false) distinctions, it is entirely understandable that the court used the phrase “do its best” (an idiomatic phrase, to echo some of your previous commentary) in relation to an all reasonable efforts obligation.
My take on this case and others is that, if you want to use a single phrase, then longstanding English case law points you to using “best endeavours”. The first reported case on reasonable endeavours comes in 1986 and the confusion, as you might see it, that the English courts have got into over gradations of endeavours has only come about in the last 20 years, prompted by arguments presented to them in recent cases.
Those arguments reflect commercial-legal practice on both sides of the Atlantic, where parties adopt negotiating positions based on perceived gradations of efforts. I agree that we should try to stop lawyers indulging in what we might call “distributional bargaining of adjectives”. I am not as hard on the English courts on this issue as you are, as they have to interpret contracts based partly on the arguments that are presented to them. However, I am persuaded by your argument that the English courts have become too willing to accept that such disctinctions exist.
By the way, one of the judges in this case was Lewison LJ, who has written an excellent book, Interpretation of Contracts (Sweet & Maxwell) that I first came across over 20 years ago. If anyone can steer the English courts away from making semantic distinctions between reasonable and best, he can.
Mark: Thank you. I’m getting used to the idea that when English courts say things like “it is accepted,” they’re referring to the positions of the litigants rather than making some general pronouncement. Ken
Not relevant to the present discussion, but if any readers were thinking of flying by Jet2…