C sought payment of broker fees after assisting in raising funds for a venture capital company. The parties disputed the terms as to when payment was to be made.
Held: The appeal was allowed. The evidence did not allow the inference of the clause sought. Aikens LJ said that when deciding whether a contractual term should be implied, the relevant factual matrix to be taken into account in ascertaining the objective intentions of thosee agreeing it, may include current market practice. This can be so even though such practices may not constitute ‘trade usage or custom’, and the contracts in question were not entirely reduced to writing, and ‘If the reasonable addressee would understand the instrument against the other terms and the relevant background to mean something more ie that something is to happen in that particular event which is not expressly dealt with in the instruments terms then it is said that the court implies a term as to what will happen if the event in question occurs.’
Aikens LJ, Hughes LJ, Sir Andrew Morritt
 EWCA Civ 1444,  1 WLR 2066,  Bus LR 943,  2 CLC 963,  CILL 2980
Late Payment of Commercial Debts (Interest) Act 1998
England and Wales
Appeal from – Crema v Cenkos Securities Plc ComC 16-Mar-2010
Applied – Attorney General of Belize and others v Belize Telecom Ltd and Another PC 18-Mar-2009
(Belize) A company had been formed to manage telecommunications in Belize. The parties disputed the interpretation of its articles. Shares had been sold, but the company was structured so as to leave a degree of control with the government. It was . .
Mentioned – Mediterranean Salvage and Towage Ltd v Seamar Trading and Commerce Inc (‘The Reborn’) CA 10-Jun-2009
The court confirmed that the necessity to give business efficacy to a contract was still required for the implication of a term into a contract. . .
Cited – Prenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
Cited – Kingscroft Insurance Company Limited, Walbrook Insurance Company Limited etc v The Nissan Fire and Marine Insurance Company Limited (No 2) 1999
An expert witness: ‘can, and indeed should inform the court of any aspects of the commercial background which have a bearing on the construction of the contract and explain their relevance’. . .
Cited – Equitas Ltd v R&Q Reinsurance Company (UK) Ltd ComC 11-Nov-2009
The court was asked as to the correct construction of 26 Excess Loss (‘XL’) retrocession insurance contracts in the London market. . .
Cited – MGN Ltd and Others v Grisbrook CA 9-Dec-2010
See Also – Crema v Cenkos Securities Plc CA 20-Jan-2011
(Supplementary judgment) . .
Cited – Graiseley Properties Ltd and Others v Barclays Bank Plc ComC 29-Oct-2012
The claimant sought damages alleging that the wrongful manipulation of the LIBOR interest rate by the defendants had caused them losses. Loan facilities which they had taken out had been subject to interest rates set by reference to LIBOR. The . .
Cited – Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another SC 2-Dec-2015
The Court considered whether, on exercising a break clause in a lease, the tenant was entitled to recover rent paid in advance.
Held: The appeal failed. The Court of Appeal had imposed what was established law. The test for whether a clause . .
Cited – Lehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .
These lists may be incomplete.
Updated: 12 March 2021; Ref: scu.427208