Identify a case that you think was wrongly decided

Although the actual decision in Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Limited and another[2015] UKSC 72 was just, Lord Neuberger modified a tried and tested principle which now can be considered as redundant. Furthermore, very little was offered in return – a very narrow principle, too unimaginative to stand as a precedent. Barrister Gillett notes that the judgment incorporated no discussion (obiter or otherwise) of how all the agreement clauses and the implications of their terms interact, which this article considers the core of the issue. The only mention of this issue is the statement of Lord Neuberger who held that ‘in some cases it could conceivably be appropriate to reconsider the interpretation of the express terms of a contract once one has decided whether to imply a term.’ (Marks & Spencer at [28] and [71]).  

For this reason, Gillett advocates a more holistic approach than was advocated by Lord Hoffmann in Belize Telecom and later rejected in Marks and Spencer. In other words, there should be a more thorough analysis of the express and implied contract terms. The arguments in favour of an implied term are weak indeed. Nevertheless, the position of the majority has many deficiencies. I agree with this analysis as the narrower approach proposed by the majority in Marks & Spencer does not systematise the complex area of law, such as in Prest v Petrodel Resources Ltd [2013] UKSC 34. The observations conducted in the majority judgment were not necessary to reach the decision in this case as the same result would likely be reached under Lord Hoffmann’s dicta. Therefore, it is argued that the departure from the previous decisions serves little purpose.