“Best endeavours” … best avoided?
31st October 2016 by Rob Kelly
The issue in the case of Jet2.com Limited v Blackpool Airport Limited  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.
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