The meaning of “default”

In ABC Electrification Ltd v Network Rail Infrastructure Ltd [2020] EWCA Civ 1645, the Court of Appeal held that the word “default” meant any failure by the contractor to comply with its obligations under the contract (and in so concluding dismissed the appeal from the decision of the Deputy High Court Judge, on which see our August/September 2019 issue, pp 7–10). The Court of Appeal rejected the submission that “default” should be confined to cases in which there is a “sense of blame or culpable behaviour on the part of the Contractor”. The case demonstrates the difficulties that are likely to be experienced when seeking to persuade a court to depart from the natural and ordinary meaning of the words used by the parties. These difficulties are likely to be particularly acute in cases such as the present where the court is not satisfied that the party seeking to dissuade the court from giving effect to the natural and ordinary meaning of the words has “no realistic alternative construction” of the disputed words. The case also illustrates the limited weight given to the submission that a particular interpretation of the disputed term will render other parts of the contract redundant. The argument from redundancy has very limited force particularly in the context of a case in which there have been extensive amendments to a lengthy standard form agreement.