Refresh - anti oral variation clauses

Notes I sent to my team back in May 2018:

Can written contracts be orally varied? Well… that depends.

Good typical lawyer’s response. Thanks! It depends inter alia on whether there’s a clause only allowing amendments in writing signed on behalf of the parties.

A “no oral modification” or “NOM” clause. Exactly and didn’t a previous case (Globe Motors v TRW Lucas [2016])  give primacy to the parties’ freedom to contract how they wished irrespective of a NOM clause?

Well… the Supreme Court has just handed down a judgement in Rock Advertising v MWB [2018] which runs contrary to Globe Motors. Can’t these judges make up their minds?

As this is a Supreme Court judgement as Globe Motors was Court of Appeal it seems they now have made up their minds. So, what did they say?

Basically, that NOM clauses were effective at preventing: (i) agreements being undermined; (ii) disputes as to whether and how an agreement was amended; and (iii) corporation’s internal rules being destabilised, so should be upheld. But doesn’t this ignore freedom of contract? What about party autonomy?

According to Lord Sumption, autonomy applies “up to the point when the contract is made, but thereafter only to the extent that the contract allows”. That makes sense, as it gives freedom followed by certainty rather than an anarchic free for all.

Well, provided one party isn’t estopped form enforcing an unvaried contract if the contract was performed and relied upon as purportedly varied. Now you’re just being technical.

Boring disclaimer - I've written/created the above in my personal capacity (as a legal nerd) for information purposes only and it is not intended to be legal advice. I make no warranty of any kind and will not be responsible for any actions (or inactions) if anyone is foolish enough to rely