Implied terms in fact and evidence of prior negotiations: an exploration

Abstract

THIS paper explores a controversy that arises from the decision of the Supreme Court in Marks & Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd (“Marks & Spencer”), in which Lord Neuberger (with whom Lord Sumption and Lord Hodge agreed) rejected Lord Hoffmann’s approach to implied terms in fact, set out in Attorney General of Belize v Belize Telecom Ltd (“Belize”), that the process of implying terms in fact is an aspect of interpretation. For Lord Neuberger, this assimilation of interpretation and implication “could obscure the fact that construing the words used and implying additional words are different processes governed by different rules”.