Mr. Justice Morgan gave judgment on 16 May 2013 in the High Court in the case of Marks and Spencer PLC v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another - ruling that Marks and Spencer could claim back approximately £1.1m of overpaid rent. This is a significant decision for landlords, although there has been much debate about the impact on both commercial landlords and the commercial tenants who have exercised break clauses in their leases.

Break notices provide fertile ground for disputes and in a thin market there is an additional incentive for parties to litigate, as it can be more difficult for landlords to re-let premises once a tenant vacates and tenants do not want to be trapped with continuing rental liabilities. It is generally issues of conditionality in relation to the exercise of the break clause that leads to disputes but in this case the tenant had successfully broken the lease and a dispute arose over the landlord's entitlement to retain rent and other charges relating to the period after the break date but that had been paid in advance.

The break clause in this case was conditional on the tenant having no arrears of rent at the break date and upon the tenant paying a break premium of £918,000 plus VAT. The rent was payable quarterly in advance and the break date was part way through a quarter. Therefore, in order to satisfy the conditional break provisions, the tenant had to pay a full quarter's rent in advance of the break date, in spite of the fact it was intended to end a few weeks into the quarter. This meant that the tenant was unlikely to receive a benefit for all of that payment. The lease did not shine light on the situation as it didn't expressly provide for what should happen in this situation.