Marks and Spencer plc v BNP Paribas Securities Services Trust Company Ltd [2013] EWHC 1279 (Ch); [2014] EWCA Civ 603; [2015] UKSC 72 – Law Journals

Landlord and tenant: Flexibility is king

Jade Capper explores the rise and rise of the serviced office market ‘It will never be a case of “one size fits all” as every business will have different needs and requirements, but there are, generally speaking, common benefits and hindrances for SMEs and start-up companies when considering which type of space to take.’ The …

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Contractual obligations: It’s all in the timing

Rob Aberdein reports on some cases which show the need for care in the drafting of pre-emptive provisions, in particular with regard to timescales ’Often, so much thought is given to the nature and extent of the obligations themselves that the issue of timing for compliance is overlooked.’ Recent cases both north and south of …

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Contract: It’s all in the timing

Rob Aberdein looks at the judicial implication of contract terms ‘Parties and their lawyers should consider very carefully what exactly will trigger overage payments or other obligations and whether there is any scope at all for either party avoiding its commitments.’ Recent cases both north and south of the border have highlighted some of the …

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Contract: What’s the point?

Michael Davar analyses the recent case of Astor and the principle of futility in contractual construction ‘The courts have moved to applying a strict literal approach to the interpretation of commercial contracts.’ In his judgment in Astor Management AG v Atalaya Mining plc [2017], Leggatt J stated that: There is, in my opinion, no principle …

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Negligence: Claims, claims and more claims

Andrew Beck, Andrew Bennett and Gwendoline Davies assess the AIG Europe case and its implications for all those bringing, facing or insuring multiple claims against solicitors ‘The Supreme Court concluded that determining whether matters are related is an acutely fact-sensitive exercise, which requires an application of judgement, and that to try to impose an any …

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Break Clauses: Rigour not reasonableness

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Christopher Morris sets out the current position on advanced payment apportionments and the law of implied contractual terms ‘The decision in M&S has had a tangible effect on property law and real estate practice.’ Just over a year on from the Supreme Court’s decision in Marks & Spencer plc v BNP Paribas Securities Services Trust …

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Contract: Nohow or contrariwise

Paul Brehony and William Gow consider the pendulum of case law in contractual interpretation ‘Parties should draft express provisions to clarify intention and not rely on pre-contractual representations or negotiations.’ In Investors Compensation Scheme Ltd v West Bromwich Building Society [1997], Leggatt LJ cited Alice Through the Looking Glass when rejecting the interpretation adopted by …

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Contract: Gotta have faith

In the second of two articles, Chris Parker, Gregg Rowan and Nick Pantlin look at the judicial implication of a duty of good faith ‘The precise formulation of the duty differs between cases, but the essence seems to be a requirement to exercise the discretion honestly and in good faith, and not to act in …

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Update: A litigation overview – 2015

Anna Pertoldi and Maura McIntosh look back at some of the key developments of 2015 from the perspective of the commercial litigator in England and Wales ‘2015 offered a welcome respite from the previous flood of case law considering applications for relief from sanctions for breaches of court rules and orders.’ As we move into …

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Contract: Buy one get one free

Dov Ohrenstein investigates a recent case of implied terms ‘A term will only be implied (other than if required to be implied by statute) if it satisfies the test of business necessity or it is so obvious that it goes without saying.’ The decision of the Supreme Court in Marks & Spencer plc v BNP …

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