Plus ça change, plus c'est la même chose: Mackie Motors v RCI and Baird Textiles v Marks and Spencer

Abstract

In Mackie Motors v RCI, the High Court and the Court of Appeal dismissed an argument based on the ‘relational contract’ in a way which recalled its dismissal 20 years earlier in Baird Textiles v Marks and Spencer. It did not seem to have had any effect that after the 2013 ‘landmark decision’ of Leggatt J in Yam Seng v ITC the ‘relational contract’ has been considered an ‘established concept’ in a number of High Court decisions. But these decisions have all been received very coolly by the Court of Appeal, and the High Court decision in Mackie Motors may indeed represent an acceptance of the attitude of the Court of Appeal. This note will argue that, if this is the case, it would constitute a regrettable failure to develop the relational contract as a concept of great practical value in cases such as Baird Textiles and Mackie Motors. It would also constitute an even more regrettable failure to use the relational contract to understand good faith and the nature of all contractual obligations along one of the lines set out by Leggatt J in Yam Seng.