To the displeasure of the tenant, in Marks And Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd & Anor [2014] EWCA Civ 603, the Court of Appeal has overturned the High Court’s decision and has obliged the tenant to repay to the landlord a rent refund (which had initially been ordered to be refunded to the tenant) representing rent paid in advance for the period between the break date of the lease and the end of the quarter in which the break occurred. The High Court had implied a term requiring the landlord to refund the “overpayment”. However, Lady Justice Arden, differing in option from the court below, was simply of the view that “the lease, read as a whole against the relevant background, would not reasonably be understood to include such a term, and thus the test for an implied term is not met.” Express repayment obligations to refund rent overpayments therefore remain de rigueur.
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