ABSTRACT
The forthcoming UK Supreme Court decision in Union of Shop, Distributive and Allied Workers (‘USDAW’) v Tesco Stores is eagerly awaited throughout the legal community. For labour lawyers, the case provides a valuable opportunity to interrogate the legality of the controversial ‘fire and rehire’ practices that have become a constant of the industrial relations world in recent years. For contract lawyers, meanwhile, the case provides a new platform on which the continuing evolution of the common law jurisprudence on interpretation and implication of contractual terms can continue to play out, whilst yet again proving a source of judicial disagreement. In this paper, I will use the present opportune moment to offer a critical reassessment of the so-called ‘modern’ approach to contract interpretation associated most pertinently with Lord Hoffman. Adopting a legal realist perspective, I will examine the popular but largely unarticulated concept of commercial common sense that lies at the heart of this purposive and contextual doctrine, by empirically investigating the most common social-distributive outcomes of cases where courts have applied the test of commercial sensibility. On this premise, I will seek to determine the compatibility of the Court of Appeal’s 2022 decision in Tesco with preceding relevant case outcomes, and – conversely – the compatibility of a Supreme Court reversal decision later this year with those same case outcome trends.
Moore, Marc T, Commercial Common Sense in Contract Interpretation: A Legal Realist Analysis (May 22, 2024), Faculty of Laws University College London Law Research Paper No 14/2024.
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