Court of Appeal finds that deleted words may be used as an aid
Although the Court of Appeal emphasised in this case, that care
must be taken when drawing inferences from deleted text, as
deletions can be made for a range of reasons and are not always
indicative of an agreed stance between the parties, the Court was
willing to look at them here, to assist in interpreting the
The appellant, Mr Atulkumar Parekh, sought a declaration that
his individual voluntary arrangement (IVA) should be set
aside. His central argument was that the IVA was conditional
on the acceptance of a simultaneous IVA relating to his wife, Mrs
Parekh (which was ultimately rejected by Mrs Parekh's
creditors). Clause 4.3 of the proposal submitted for approval
by Mr Parekh's creditors stated: "the acceptance of my
IVA is conditional upon the acceptance of the arrangement for my
wife/husband, following acceptance the estates shall be combined
for dividend purposes and treated as one." However
the proposal submitted actually contained a number of
modifications, set out in a separate document. In that
document, the above clause was expressly substituted as
"Clause 4.3 is to be substituted with 'I agree to
pay the supervisor for the benefit of the creditors not less than
£230 per month for the duration of the IVA."
A number of provisions in the proposal remained unaffected by
the modifications. The question for the Court of Appeal was whether
recourse could be had to the deleted text and what inference, if
any, could be drawn from it. The judge at first instance found that
the fact that the proposal was drafted first, and the modifications
drafted later, could not be ignored and the interdependence of the
two IVAs was therefore broken by the modification.
The Court of Appeal explained that deleted words in a printed
form may resolve the ambiguity of neighbouring paragraphs.
Secondly, that if the fact of the deletion shows what it is that
the parties did not agree and there is ambiguity in the words that
remain, "then the deleted provision may be an aid to
construction, albeit one that must be used with
Here, the Court took the view that the IVA proposal (and
modifications) were ambiguous over whether the IVA was conditional
upon approval of Mrs Parekh's IVA being approved. The
Court stated that, "Faced with that level of ambiguity, it
is in my view entirely legitimate to have regard to what the
Modification removed from the Proposal, by the substitution of a
new clause 4.3 for the old. Plainly, the words in the
Modification "clause 4.3 is to be substituted with..."
mean that the whole of the old clause 4.3 is substituted. The words
of conditionality are removed altogether."
In light of the Court's interpretation of the meaning of the
existing provisions (with the assistance of the deletion), the
Court concluded that the requirement of conditionality had been
removed and therefore that Mr Parekh's argument for having the
IVA set aside failed.
In the recent decision in Joyce Whitfield v Revenue & Customs Commissioners  UKFTT 685 (TC) the Tribunal considered that inflexible and disproportionate behaviour by a party's legal representative...
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).