Resumen de Modifications, Wrangles, and Bypassing: Rock v MWB
The Supreme Court recently handed down judgment in Rock Advertising Ltd v MWB Business Exchange Centres Ltd . The judgment is notable for three things: the Supreme Court’s “clean break with something approaching an international common law consensus” on the issue of the effect of “No Oral Modification” (“NOM”) clauses, thus overturning the unanimous judgment of the Court of Appeal; the wrangles between Lord Sumption and Lord Briggs on the means by which NOM clauses may themselves be modified; and the Supreme Court’s bypassing of the issue of consideration, despite the widespread hope that the case might provide an opportunity for some consistency to be restored to this muddled area of English law. This note will argue: that the Supreme Court’s recognition of the effect of NOM clauses is to be welcomed; but that the reasoning in Lord Briggs’ minority judgment is to be preferred to that of Lord Sumption’s leading judgment; and that it is deeply regrettable that the Supreme Court declined to deal with the issue of consideration. Lord Sumption observed that “Modern litigation rarely raises truly fundamental issues in the law of contract”. He is undoubtedly correct, and that is why the Supreme Court should have taken advantage of this rare opportunity when such an “exceptional” appeal finally reached our highest court for deliberation
