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!