When a contract imposes an obligation on a party to carry out an obligation, then, unless some conditions or qualifications are imposed, the obligation is absolute. Failure to comply with that obligation will give rise to liability for breach of contract. Parties to a contract very often try to qualify an absolute obligation by agreeing only to use some form of endeavours to achieve it. This is so much more important where a third party must be involved in order for the obligation to be carried out. There is a great range of endeavours clauses, from the strictest form of "best endeavours" to a middle ground "all reasonable endeavours" and to the weakest form of "reasonable endeavours". The actual effect of each endeavours clause will depend on the other provisions of the agreement and the commercial context. 

Blackpool Airport Ltd (Airport) made a 15-year contract with Jet2.Com Ltd, a low-cost airline. The contract was prepared with little legal help and was expressed in broad, but certain, terms. It began with both parties' obligation to "co-operate together and use their best endeavours to promote Jet2.com's low cost services from [Blackpool Airport]". It also required the Airport to "use all reasonable endeavours to provide a low cost base to facilitate Jet2.com's low-cost pricing".

The parties agreed, for this case, that best endeavours and all reasonable endeavours meant the same thing and so the judge treated the two expressions as interchangeable.  The contract said nothing about operating hours. As the judge found, the airport's published opening hours were 6 am to 8 pm (7 am to 9 pm in winter), and both parties understood that a low-cost operation would need flexibility to leave early and arrive late outside these hours.

The judge found that it was implied  that the airline would not be restricted to the airport's published opening hours, even though keeping the whole airport open for just one arrival or departure would cost the airport far more than it would earn. For the first four years of the contract, the airport ran at a loss, and the Airport allowed the airline to arrive and depart outside the published opening hours. Then, in an attempt to improve profitability, the Airport refused to accept arrivals or departures scheduled outside its published opening hours, giving the airline one week to change its schedules.  The airline sued for breach of contract, and asked for a declaration to say what hours the airport must offer for the next ten years. The Airport argued that its duties to use best or all reasonable endeavours did not require it to act against its own commercial interests.   

The judge found it relevant that the Airport's duties to use best or all reasonable endeavours related to matters within its own control, that is, whether to schedule arrivals and departures outside the airport's published opening hours. That distinguished this case from other "all reasonable endeavours" cases where a party was not required to pay an extortionate price towards achieving a result outside its control.  

The Airport was found to be in breach of contract by refusing to schedule any services outside their published opening hours and supposing that they had no duty at all to schedule early or late services. However, the judge said that it did not follow from this conclusion that the airline had an immutable right to insist that particular hours be observed through the lifetime of the agreement. As a result, the judge did not decide on the Airport’s specific operating hours.    

We understand that the airline's victory in this case came at the cost of an interim injunction and an expedited trial involving leading counsel, 19 thick bundles of documents and evidence from ten witnesses. A more thought of drafting and agreement on operating hours would have eliminated most of the evidence and argument. Furthermore, the decision has not resolved the underlying and ongoing commercial problem of the operating hours.

Such cases show the practical and commercial importance of allowing for mediation at an early stage, before the parties become entrenched in their positions by including relevant clauses in the contract.   

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