The officious bystander rides (the Clapham omnibus) again: Jamie Sutherland & Julia Petrenko on implied terms after Marks and Spencer v Paribas
The recent Supreme Court decision in Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Limited and Another [2015] UKSC 72, [2015] All ER (D) 24 (Dec) dealt with that perennial source of contentious work for the landlord and tenant specialist, a tenant’s break clause in a commercial lease. However, the decision was of wide-reaching interest for its treatment of the law of implied terms: the Supreme Court were divided as to the continuing authority of Lord Hoffmann’s analysis of implied terms in Attorney General of Belize and Others v Belize Telecom Limited [2009] UKPC 10, [2009] 2 All ER 1127; and the result has been to confirm that implying a term is as difficult now as it ever was.
The decision in Marks and Spencer
Marks and Spencer concerned four commercial leases, effectively in identical form. Each lease provided for rent to be payable quarterly in advance on the usual quarter days. Clause 8 contained a tenant’s break
