Did adjective apply to the whole list or just the first item? Court of Appeal gives ruling
Sometimes, parties to contracts look back at the wording they used and wish they would have been clearer.
In the case of Cantor Fitzgerald v Yes Bank, the Court of Appeal had to rule whether an adjective or other determiner at the beginning of the list applied to the first item on the list or the whole list. Here, the word "private" was followed by "placement, offering or other sale of equity instruments". Whether "private" applied to the first item or the whole list affected whether commission was payable or not at all. So there were high stakes involved.
The Court of Appeal ruled that "private" did apply to the whole list and therefore no commission was payable. It said that while there is no specific rule that an adjective or other determiner at the start of the list qualifies all of it, the nature of that list may well indicate that it does. Unless something suggests to the contrary in the drafting, the reader would naturally assume the adjective applies to all of the list. Here, it made sense for "private" to apply to all of the list. The factual matrix of the rest of the contract did not indicate otherwise here. They could also have used other wording or rearranged the order of the list if they had wanted an alternative meaning.
Whilst each case will turn on its own facts, this case is useful to show what is likely to happen when there is an adjective followed by a list. However, this result would have come at considerable cost in terms of time and money for both parties. There were therefore no winners in a case like this. Both parties will surely be kicking themselves that they did not make their drafting clearer in the first place to avoid having to go through this legal process. Hindsight is a wonderful thing!