Further Guidance On 'All Reasonable Endeavours'

JET2.com Limited v Blackpool Airport Limited [2011] EWHC 1529 (Comm)

JET2 is a low cost airline which entered into an agreement with Blackpool Airport in 2005 for flights to and from the airport. The key wording in a simple agreement was: "JET2.com and BAL will co-operate together and use their best endeavours to promote JET2.com's low cost services from Blackpool Airport and BAL will use all reasonable endeavours to provide a cost base that will facilitate JET2.com's low cost pricing." Blackpool Airport had certain published operating hours, but there were not mentioned in the agreement. The case turned on the extent to which JET2 could insist on flying at times outside those operating hours. For some years, it had been scheduling flights outside hours, but new owners of Blackpool Airport told Jet2 in October 2010 that it would no longer accept flights outside hours. The problem for Blackpool Airport was that keeping the airport open for JET2's early and late flights was uneconomic. JET2's argument was that it is essential for a low cost airline to have as many flights as possible a day, particularly for aircraft based at the airport. The arguments turned on construction of the key wording quoted above, and in particular the meaning of "promote" and "all reasonable endeavours".

The High Court (His Honour Judge Mackie QC) found in favour of JET2.

"Promote" in such an important clause could not be restricted to the limited marketing and advertising sense – and anyway marketing and advertising was covered by a subsequent clause. "All reasonable endeavours to provide a cost base that would facilitate JET2's low cost pricing" should be interpreted as an obligation to provide facilities and services that would bring about the low cost pricing. The absence of an express provision as to opening hours suggested that it was "too obvious to mention" that JET2, like its competitors at Blackpool, would not be confined to normal operating hours. The Judge reviewed the cases on all reasonable endeavours (which was accepted by the parties as being the same thing as best endeavours). He made the point that the meaning is a question of construction in each case and not a matter of extrapolation from other cases. He distinguished other cases on the grounds that...

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