.JPG)
The
Supreme Court has given permission for M & S to appeal the
Court of Appeal's decision* that it couldn't recover from its former
landlord excess rent relating to the period between a break date in its lease
and the end of the rental quarter in which it fell.
The Court
of Appeal had overturned a High Court decision that ruled in favour of M &
S.
The break
clause had required M&S to pay a full quarter’s rent in advance for it to
be validly exercised.
There was
no express clause in the lease entitling M&S to a reimbursement.
The Court
of Appeal refused to imply such a clause.
It
reasserted the orthodox view that a term can only be implied into a contract if
it's necessary to achieve the parties’ express agreement, construed
against admissible evidence.
The decision to allow an appeal may cause some surprise.
The
Supreme Court only entertains appeals which “raise an arguable point of law of
general public importance which ought to be considered by the Supreme Court at
that time, bearing in mind that the matter will already have been the subject
of judicial decision and may have already been reviewed on appeal.”
This case
turned on its facts - whether the landlord had already been adequately
compensated by a penalty payment.
Which
seems too specific to amount to a point of law of general public importance.
We shall
see.
Could it
be that the Supreme Court wants to look at break clauses and/or the rules of
implying unwritten terms into leases more generally?
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