Can an adjudicator consider pre-contract negotiations?

Chris Holwell considers the exclusionary rule on the interpretation of contracts and whether there are any circumstances in which an adjudicator can go around it.

The rule that pre-contract negotiations should not be admitted to aid the interpretation of a contract (the 'exclusionary rule') has long been embedded in UK law and was reaffirmed in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38.Lord Hoffman stated in Chartbrook: 'The rule that pre-contractual negotiations are inadmissible was clearly reaffirmed by this House in Prenn v Simmonds...where Lord Wilberforce said...that earlier authorities "contain little to encourage, and much to discourage, evidence of negotiation or of the parties' subjective intentions."

It is clear that the rule of inadmissibility has been established for a very long time.

'At paragraph 29, Lord Hoffman referred to the judgment of Lord Blackburn in Inglis v John Buttery (1873) 3 App Cas 552: '[T]he formal contract shall supersede all loose and preliminary negotiations - that there shall be no room for misunderstandings which may often arise, and which do constantly arise, in the course of long, and it may be desultory conversations, or in the course of correspondence or negotiations during which the parties are often widely at issue as to what they will insist on and what they will concede...The written contract is that which is to be appealed to by both parties, however different it may be from their previous demands or stipulations whether contained in letters or verbal conversation.

Policy reasons: This article was first published by Solicitors Journal on 27.10.15 and is reproduced with kind permission.

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