The court considered the meaning on a promise by one party to use its best endeavours to obtain a relevant planning permission.
Held: The obligation included an obligation to appeal from an initial refusal of permission so long as the circumstances were such as to indicate that there was a reasonable chance of success.
Buckley LJ said: ‘I can feel no doubt that, in the absence of any context indicating the contrary, this should be understood to mean that the purchaser is to do all he reasonably can to ensure that the planning permission is granted. If it were refused by the Local Planning Authority, and if an appeal to the Secretary of State would have a reasonable chance of success, it could not, in my opinion, be said that he had ‘used his best endeavours’ . . I find it difficult to see how it could be said that to fail to appeal, if the circumstances were such as to indicate that an appeal from a refusal of planning permission had a reasonable chance of success, could be said to be using ‘best endeavours’ to obtain the planning permission. ‘ and ‘In my judgment the test must be: what would an owner of the property with which we are concerned in this case, who was anxious to obtain planning permission, do to achieve that end. The formula which has been suggested and which would commend itself to me is that the plaintiffs as covenantors are bound to take all those steps in their power which are capable of producing the desired results, namely, the obtaining of planning permission, being steps which a prudent, determined and reasonable owner, acting in his own interests and desiring to achieve that result, would take.’
Geoffrey Lane LJ described the duty accepted as to ‘take all those reasonable steps which a prudent and determined man, acting in his own interests and anxious to obtain planning permission, would have taken’. An obligation to use best endeavours is sufficiently certain to be enforceable so long as the object to be achieved is clear.
Goff LJ said that an agreement to use best endeavours to agree a mutually acceptable price is unenforceable.
Judges:
Buckley LJ, Geoffrey Lane LJ, Goff LJ
Citations:
[1980] FSR 335
Jurisdiction:
England and Wales
Cited by:
Cited – Overseas Buyers v Granadex 1980
The court considered the meaning of a promise by one party to use its best endeavours.
Held: Mustill J said: ‘it was argued that the arbitrators can be seen to have misdirected themselves as to the law to be applied, for they have found that . .
Cited – Rhodia International Holdings Ltd. Rhodia UK Ltd v Huntsman International Llc ComC 21-Feb-2007
The parties contracted for the sale of a chemical surfactants business.The claimant had contracted to use reasonable endeavours to obtain the consent of a third party for the assignment a a contract to supply energy to the business. The defendant . .
Cited – EDI Central Ltd v National Car Parks Ltd SCS 27-Oct-2010
. .
Cited – R and D Construction Group Ltd v Hallam Land Management Ltd SCS 10-Dec-2010
. .
Cited – Dhanani v Crasnianski ComC 15-Apr-2011
The parties disputed the terms of a contract between them under which the defendant was to provide substantial sums for the claimant to invest. . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 31 July 2022; Ref: scu.251417
