In all the fuss over whether guarantors can guarantee assignees or AGAs, it may have been overlooked that in K/S Victoria Street v House of Fraser (Stores Management) Ltd & Ors [2011] EWCA Civ 904, the Court of Appeal seems to have downplayed considerably the usefulness of the contract interpretation rule known as the contra proferentem rule. This is the rule that states that, in the case of an ambiguity, a document will be construed against the grantor. (In connection with a lease, in most cases this would be the landlord).
This is what Lord Neuberger said [at para.68]: “Like the Judge, we consider that there is no need to resort to the [contra proferentem] rule in order to resolve the issue of interpretation in favour of Victoria: such rules are rarely if ever of any assistance when it comes to construing commercial contracts. Quite apart from raising abstruse issues as to who is the proferens (and, in particular, whether the issue turns on the precise facts of the case or hypothetical analysis), “rules” of interpretation such as contra proferentem are rarely decisive as to the meaning of any provisions of a commercial contract. The words used, commercial sense, and the documentary and factual context, are, and should be, normally enough to determine the meaning of a contractual provision.”