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“Best endeavours” … best avoided?

31st October 2016 by Rob Kelly

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The issue in the case of Jet2.com Limited v Blackpool Airport Limited [2012] EWCA Civ 417 was whether an airport operator’s obligation to use best endeavours to promote an airline’s low-cost services gave rise to an enforceable obligation to operate outside normal opening hours, which was essential to the airline’s business model.  The Court of Appeal held that it did and that the airport could not escape the obligation on the basis that to comply would be unprofitable.

When Blackpool Airport served notice on Jet2.com stating that it was no longer allowing flights outside of its normal operating hours, Jet2.com claimed this was a breach of contract and claimed damages.  The contract provided for the parties to “co-operate together and use their best endeavours to promote Jet2.com’s low cost services”.  The court held that the “best endeavours” clause gave rise to a more specific obligation on BAL to allow Jet2.com flights to arrive and depart outside of the airport’s normal operating hours, even though the airport would lose money by doing so.  A “best endeavours” obligation could therefore result in a party having to act to its financial detriment.

Comment: When negotiating a contract, parties may tend to focus on the extent of their obligations and the lengths to which they will be required to go to achieve a particular outcome.  This case illustrates how essential it is to identify the specific outcomes of each obligation and to ensure that it is sufficiently clear as to be enforceable.

If you would like further information please contact Rob Kelly.

This article provides information and comments on legal issues and developments of interest.  The contents of this article do not constitute legal advice, is not a comprehensive treatment of the subject matter covered, and should not be relied on as such.  Legal advice should be sought about your specific circumstances before taking any action with respect to the matters discussed.

Rob Kelly

Senior Associate — Dispute Resolution

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Rob is an Associate Member of the Chartered Institute of Legal Executives (September 2009).  Rob also holds an LLB (Hons) degree in law.  He successfully completed training as a mediator under the ADR Chambers / Harvard Law Project Scheme and was one of the first mediators to have been appointed an IMI Certified Mediation Advocate in the UK with a commercial practice.

Rob specialises in dispute resolution through litigation, arbitration and mediation, with particular emphasis on contractual disputes, claims involving allegations of professional negligence (which he has prosecuted on behalf of commercial and private clients and defended on behalf of insurers, re-insurers and Lloyd’s syndicates). He is regularly instructed in connection with substantial disputes involving contractual, professional negligence, contentious probate issues.  Rob also deals with contentious property and landlord and tenant issues.

Rob’s style is a mix of listening, asking (tough) questions, diplomacy and reality testing. He’s interested, flexible, and pragmatic. He offers a common sense, realistic approach to assist his clients in searching for solutions to their disputes and brings straight talking and integrity to his work.

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