Vol 18 (2021) - Issue 5

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Avery-Gee v Sibley [2021] EWHC 798 (Ch)

Synopsis
On the application of the administrators of FundingSecure Ltd (in administration) (the "Company") the High Court considered the interpretation of disputed contractual provisions including when "background materials" can be used to interpret the intention of contracting parties and the invocation of the contra proferentem principle. The court held in favour of the company’s customers balancing the arguments of "commercial common sense" put forward by each party and rejecting the alternative interpretation put forward by a creditor, former director and majority shareholder (the "Former Director"). However, the use of "background materials" (including documents such as customer FAQs and customer newsletters) to support the construction submitted by the customers was rejected.