The House of Lords has recently been asked whether pre-contract negotiations should be used to help give meaning to the terms of a written contract.

It might be tempting not to worry about the small print created by the lawyers, but instead rely on your memory of the in depth discussions that took place before the lawyers were involved. However, in a decision reported on 01 July 2009, the court confirmed that all pre-contractual negotiations were inadmissible. This may seem harsh, but Lord Hoffman, one of the judges of the case, made clear his belief that allowing those types of material to be presented to the court would create greater uncertainty, pushing up the costs of enforcing a breach of contract.

BUT all is not lost – the door remains firmly ajar in two special circumstances – known as rectification and estoppel. These exceptions are technical and would need to be specifically considered by the courts.

Rather than worrying about whether your contractual paperwork is fit for purpose, why not ask an expert to review it for you? A simple report may well cost less than you think, and would help avoid embarrassment, wasted management time and high litigation costs later.

[Chartbrook Limited and anor v Persimmon Homes Limited and anor [2009] UKHL 38]