ABSTRACT

Lord Hoffmann’s speech in Investors is now one of the most often cited judicial pronouncements of all, and his statement has been readily accepted by much of the judiciary.1 Nevertheless, some have sounded a note of caution. In Beazer Homes Ltd v Stroude, Munby LJ, clearly alluding to Lord Hoffmann and Lord Wilberforce, remarked, ‘Utterances even of the demi-gods are not to be approached as if they were speaking the language of statute. Our task, rather, is to identify, with their assistance, the underlying principles of the common law’.2 Although judges might be generally agreed that the law on interpretation must be found in Lord Hoffman’s speech, there is still plenty of scope for disagreement about what its detail requires. These disagreements may just be a reflection of the endlessly disputed nature of interpretation. Or they may reflect differences of opinion over the judicial role in the contract dispute or differences about what is ‘good for business’, or concerning what contextual interpretation requires and allows. In this chapter some of the difficulties with Lord Hoffmann’s approach to the interpretation task will be examined. Not all of these difficulties arise directly out of the speech, but they occur because of the seeming contradiction between what the contextual approach demands and the limitations imposed by both legal regulation of agreements and common law method.