The standard financial remedy omnibus includes 11 clauses in both undertakings and orders to use “best endeavours”. The most important is probably the clause that reads:
"The [applicant]/[respondent] shall use [his]/[her] best endeavours to procure the release of the [respondent]/[applicant] from any liability under the mortgage…..”
This is regularly included in orders. Commonly when it is intended that a party will remain in occupation of the property despite the fact that they are unlikely to be able to release their former spouse from the mortgage covenants.
What does best endeavours actually mean? I am currently arguing, on behalf of a former husband who has lived away from the family home for many years, that using best endeavours means that his former wife must sell her home now that the children are adults if she cannot secure his release in any other way. Following an FDR the matter is now listed for trial.
Case law has made clear the difference between a requirement to use reasonable endeavour and to use best endeavours. Best endeavours carries an onerous obligation. It is a requirement to take all steps that a prudent and determined person acting in their own interests and desiring the result would take. The promisor must do ALL in its power to bring about the result, even if that means subordinating its own interests.
In effect that it would seem that means a sale of the property if there is no other way to secure the release.
In contrast “reasonable endeavours” imposes a less strict requirement, that a party takes reasonable steps to achieve the outcome rather than ALL possible steps. Best endeavours places an obligation to go further.
My client’s problems would have been solved by a provision in the order for a sale of the property at a specified date if the release had not been secured- a potential negligence problem for the lawyers who acted at the time of the order.
My advice - only use best endeavours if you really mean a party to do absolutely everything possible to achieve an outcome including sell their home, and make sure that you include a long-stop date for a sale to ensure release from mortgage covenants.
