It's not just a break clause — it’s a non-implied apportionment term break clause
The much anticipated Court of Appeal decision in Marks & Spencer plc (M&S) v BNP Paribas Securities Services Trust Company (Jersey) Ltd  EWCA Civ 603 has been handed down. The controversial High Court judgment has been overturned.
M&S had exercised a break right in its lease. The break contained conditions as to payment, but did not contain an express apportionment provision (i.e. rent to be payable on a proportionate basis between a payment date and the break date).
A rent payment date occurred prior to the break and M&S paid a full quarter’s rent, despite the landlord invoicing M&S on an apportioned basis from the quarter day to the break date. M&S was wise to do this to ensure that it complied with the conditions of the break to enable the break to be effective — better to have an argument about apportionment after the break than an argument about whether the lease itself has been broken. All in all, the apportioned amount was around £1.1m. The landlord claimed that its invoice was sent in error and retained the full quarter’s rent. M&S applied to the High Court on the basis that the words ‘proportionately for any part of a year’ amounted to an express apportionment term. M&S also submitted that a term should be implied whereby rent was to be apportioned and repaid for the period from the break date to the end of the quarter…
Click on the link below to read the rest of the Dentons briefing.
Sign in or Register to continue reading this article
It's quick, easy and free!
It takes just 5 minutes to register. Answer a few simple questions and once completed you’ll have instant access.Register now
Why register to The Lawyer
In-depth, expert analysis into the stories behind the headlines from our leading team of journalists.
Identify the major players and business opportunities within a particular region through our series of free, special reports.
Receive your pick of The Lawyer's daily and weekly email newsletters, tailored by practice area, region and job function.
More relevant to you
To continue providing the best analysis, insight and news across the legal market we are collecting some information about who you are, what you do and where you work to improve The Lawyer and make it more relevant to you.
News from The Lawyer
Analysis from The Lawyer
Life in Canada is getting harder for firms as commodities prices fall and work volumes slow
Which firms are cutting it in this era of slimline rosters, and who are the GC new brooms making clean sweeps? The Lawyer can reveal all