If your contract wording is ambiguous, when can you take into account deleted clauses? This question has been considered twice in the last few months in reported cases, one from the Court of Appeal and the other from the Technology and Construction Court. This is particularly relevant for construction and engineering contracts because of the widespread use of schedules of amendments to amend standard form contracts.
Thankfully, the two cases came to the same conclusion, based on the earlier case of Mopani Copper Mines plc v Millennium Underwriting Ltd [2008] EWHC 1331. The good news: deleted wording can be taken into account where there is an ambiguity in the contract wording. The bad news: you can only do so in limited circumstances and it must be done with care, and as part of the overall context in which the new wording was negotiated. It is not the case that simply because something has been deleted, the opposite is true: there are many reasons why parties might delete wording other than wanting to achieve the opposite of the original clause.
So, for example, if an event entitling a contractor to an extension of time ("a relevant event") is deleted from a standard form contract and replaced with an alternative relevant event, and the meaning of the new wording is unclear, the differences in drafting can be reviewed by the court to aid the court's interpretation of the context in which the new wording was agreed. However, the deletion of the original relevant event, in itself, is not enough to show that the new relevant event will not have some of the same effects.
Narandas-Girdhar v Bradstock [2016] EWCA Civ 88 and J Murphy & Sons v Beckton Energy [2016] EWHC 607 (TCC)
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