End-of-chapter questions: Answer Guidance 13.1

This question is based upon a quotation from the recent decision of the Supreme Court in Marks & Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd [2015] UKSC 72. This is a very important case in this area, and you should be able to engage with the reasoning of the judges. The Supreme Court thought that implication is distinct from interpretation, although in a sense both are concerned with determining the scope of the obligations owed by the parties to one another. The Supreme Court shifted away from the view favoured by Lord Hoffmann in Attorney General of Belize v Belize Telecom Ltd [2009] UKPC 10, [2009] 2 All ER (Comm) 1 that implication was just an aspect of a broad doctrine of interpretation. You should express a view about whether this is appropriate, and how the traditional tests of ‘business efficacy’ and ‘the officious bystander’ can be explained. The question is not limited to terms implied in fact (although the quotation from the Marks & Spencer case was only concerned with such terms) and it would be legitimate also to consider terms implied at law, for example, and why those implied terms might rest upon a broader basis.