Ambiguity is not a precondition for examining contextual and background material in the construction and interpretation of a written contract, unless and until the High Court corrects this approach. The parol evidence rule has no scope to operate until it has first been ascertained that the contract is wholly in writing. Where a contract is partly written and partly oral, its terms are to be ascertained from the whole of the circumstances as a matter of fact. A judge is not obliged to accept uncross-examined evidence where it is inconsistent with other accepted evidence or inherently incredible, and the rule in Browne v Dunn does not prevent rejection where affidavits have been exchanged prior to trial.
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