- Court refuses to imply term regarding timescale for service of break notice (Wigan BC v Scullindale Global Ltd)
- What are the practical implications of this case?
- What was the background?
- Factual background
- Issues before the court
- What did the court decide?
- Implied terms
- Valuation date
- Council’s claim for mesne profits and damages
- Case details
Property Disputes analysis: This case considers the validity of a break notice and whether a term can be implied into a break clause requiring any notice served thereunder to be served within a ‘reasonable time’. Importantly, the court implied a term that the notice could only be served while the breach that gave rise to the termination event was extant on the basis that it was ‘so obvious as to go without saying’, notwithstanding this argument was not pleaded by the parties or met the recognised test for the implication of terms in a contract which include that it must be necessary for business efficacy. It also considers when mesne profits might be payable by a trespasser to a landowner, concluding that they will not be payable where the landowner has suffered no loss, and the trespasser has received no financial benefit from its continued occupation beyond the break date—a relevant point to note, given the impact of the pandemic on the hotel industry. Written by Claire Lamkin, property litigation partner at Blake Morgan LLP.
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