Commercial analysis: The court granted the summary judgment application of the First Claimant (‘Gama Aviation’). None of the defendant’s pleaded defences had a real prospect of succeeding. Gama Aviation was entitled to the sums claimed because it held the relevant contractual rights on the basis of either an implied novation or an assignment. The implied novation was not precluded by the contract’s clauses requiring a variation or unilateral termination to be in writing, neither of which, properly construed, applied to the discharge of a contract and its replacement by another contract by novation. The assignment was valid notwithstanding the defendant’s refusal to consent. While the contract contained a restriction on assigning rights without the other party’s consent not to be unreasonably withheld, since the defendant’s refusal to consent had been unreasonable, the claimants had been entitled to proceed without it. Gillian Hughes, Barrister at Fountain Court Chambers.

LRT v Hatt concerned the validity of the merger of the wages fund and the staff fund of the London Regional Transport (LRT) pension scheme under a private act of Parliament in April 1989. The court upheld the validity of the merger of the two funds. Several points of general relevance to pension schemes and to their merger were decided. In particular, the court held that, although the trustees had sought to appoint a corporate trustee using an appointment power which did not permit this, the court could consider that another power (namely the amendment power) could be treated as having been exercised to validate the appointment.

Implied powers refer to the Union powers which are not explicitly conferred upon the Union in the Treaties, but derive either from the explicitly attributed powers or objectives of the Union.

A statute which is inconsistent with an earlier statute (so that both cannot be applied) is taken to have impliedly repealed the relevant provision(s) of the earlier statute.

Dispute Resolution analysis: This judgment covers a number of matters of interest to litigators and legal practitioners more generally. It reiterates the principles whereby an implied retainer can be found between a solicitor and a client, despite no letter of engagement having been signed. The case also follows and applies the reasoning of the Supreme Court in Sevilleja v Marex Financial, and thus contains an example of the court applying the rules against claiming reflective loss. Lastly, the judgment considers sections 9 and 82 of the Arbitration Act 1996 (AA 1996), and the issue of when a party is claiming through or under another party to the arbitration and when an arbitration can be stayed on this basis. Written by Angharad Parry, barrister, at Twenty Essex.

ARCHIVED Where a tenant holds over after the expiry of an existing tenancy that does not benefit from security of tenure, it is an open question whether the circumstances (including any payment of rent) show that the parties had agreed to enter into a new periodic tenancy or some other (lesser) arrangement (ie a tenancy at will). Ordinarily, if one party allows another into possession of their land on payment of rent, then in the absence of any other relevant circumstance the inference sensibly and reasonably to be drawn is that the parties intended to create a periodic tenancy. However, the court has repeatedly found that the presumption of a new periodic tenancy is rebutted where the tenant goes into occupation, or holds over, while the terms of a new contracted-out lease are being negotiated; instead the parties have been held to have created a tenancy at will. This distinction is crucial, because a periodic tenancy enjoys security of tenure

A term which is imported into a contract, in addition to those expressly agreed by the parties. There are three broad categories of implied terms—those implied by statute, by common law and by fact.

Commercial analysis: The High Court decision in Ellis v John Benson, has called into question the subject of good faith in franchising yet again. It highlights key issues flagged in previous cases, such as Dwyer v Fredbar, of the importance for franchisors of taking into account the type and nature of the franchisees and having good on-boarding practices. It is, however, a case that ultimately is very much based on its specific facts and on conduct that is not typical of most ethical franchisors. Written by Fiona Boswell, partner at Knights.

The implication of terms into a contract is a large and complicated area of law. Sometimes, a particular term will be implied automatically into all contracts of a specific type, either by statute or by common law. In other cases, implied terms are a way of supplying words which are not in the contract by looking at the original intended meaning of the contract when the parties entered into it, and to make the contract work. This Practice Note looks at implied terms in the context of construction contracts—for more detailed commentary on implied terms generally and the difference between terms and representations, see Practice Note: Contract interpretation—express terms in contracts. What are implied terms? An implied term is one that has not been expressly agreed between the parties and is therefore not recorded in the contract. It will be implied into the contract for various reasons and in various circumstances—for example if it is necessary to give the contract business efficacy (ie the term is necessary to make the contract work). It is common for gaps

Express and implied contractual terms distinguished Contractual terms may be either express or implied: • express terms—are terms which are actually recorded in a written contract or openly expressed in an oral contract at the time the contract is made (or there may be a combination of written and oral express terms) • implied terms—are not stated in the contract but arise 'by implication' to reflect the intention of the parties at the time the contract was made. Terms may be implied by fact, law or custom. For guidance on implying terms into contracts, see Practice Notes: ◦ Contract interpretation—terms implied by law ◦ Contract interpretation—terms implied by fact ◦ Contract interpretation—terms implied by custom and usage This Practice Note considers statutory implied terms in contracts for the supply of goods and services, being the implied terms under the Sale of Goods Act 1979 (SGA 1979) and the Supply of Goods and Services Act 1982 (SGSA 1982). It considers what the implied terms under SGA 1979 and SGSA

A trust declared by a party not directly but by implication

Banking & Finance analysis: This analysis discusses the case of Standard Chartered plc v Guaranty Nominees Ltd, in which the court implied a term into a contract that a ‘reasonable alternative rate’ applied following the cessation of USD London Interbank Offered Rate (LIBOR).