17/03/2022

Is the Supreme Court decision in Rock Advertising wrong?

Thomas Raphael QC has just published an article in the Law Quarterly Review titled, “Tying Your Own Hands: the Supreme Court’s Decision in Rock Advertising” [2022] 138 LQR 299.

In Rock Advertising v MWB the Supreme Court addressed what it called a “truly fundamental issue in the law of contract”, whether contracting parties can bind themselves for the future in ways they cannot unbind. Lord Sumption concluded that contract law should give preclusive effect to No Oral Modification (NOM) clauses, so that they cannot be overridden by subsequent oral or informal contractual variations, even if agreed by parties, unless the formal requirements of the prior clause were satisfied.

Within the article, Tom argues that Rock Advertising leads contract law down the wrong path, takes England and Wales out of line with other major commercial centres, and risks causing injustice. The article also addresses the Supreme Court’s comments in Rock Advertising on estoppel in the NOM clause context, which have proved influential, and suggests that they are obiter, wrong, and need not and should not be followed – or at any rate should be modified, as if applied rigidly, they will cause problems in contract litigation.

The article was published in the Law Quarterly Review’s April 2022 edition on 11 March 2022 and is available online on Westlaw UK and from Sweet & Maxwell.