1 User Commentary
07 December 2015
Case Digest: Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Limited and another  UKSC 72
LAND LAW; BREAK CLAUSE; LEASE; APPORTIONMENT OF RENT
The test was whether, without the implied term, the contract would lack commercial or practical coherence.
The Supreme Court of the United Kingdom handed down judgment in the case of Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Limited and another  UKSC 72 on 2 December 2015.
The appeal was heard before Lord Neuberger (President), Lord Clarke, Lord Sumption, Lord Carnwath and Lord Hodge.
The appeal was brought by Marks and Spencer plc on the ground that a term should be implied into the lease of the property rented from BNP Paribas, that where the tenant exercises the right to break and the lease is determined, the landlord should pay back a proportion of the Basic rent in respect of the period from when the lease was determined on 24 January 2012 and 24 March 2012.
In his judgment Lord Neuberger, with whom Lord Sumption and Lord Hodge agreed, decided that this case was concerned with a term which, when implied into the contract in light of express terms, made commercial common sense where the facts were known to both parties at the time the contract was made; see Geys v Société Générale  UKSC 63, para 55. It would be wrong to attribute to a landlord and a tenant, particularly where the lease is full and professionally drafted as in this case, an intention that the tenant should receive an apportionment part of the rent payable and paid in advance, when the non-apportionability of rent is long and clearly established. The decision of the Court of Appeal in Ellis v Rowbotham  1 QB 740 applied.
Lord Carnwath and Lord Clarke gave concurring opinions.
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