Supreme Court’s latest word on implied terms

Marks & Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd (2016) 30 COL 07 2330, [2016] UKSC 72, 2 December 2015

The Supreme Court gave helpful clarifications on the tests for implied terms in the course of considering the effect of a commercial lease. The lease provided that rent was payable quarterly in advance. Marks & Spencer exercised a right to terminate the lease under a break clause, and the lease terminated on 24 January 2012, but in giving notice, Marks & Spencer paid the basic rent in full for the quarter starting on 25 December 2011 and ending on 24 March 2012, together with the break premium. A dispute then arose regarding Marks & Spencer’s demand for repayment of the rent for the period from 25 January to 24 March 2012, which was argued on the basis of an implied term.