Penalty clauses
Penalty clauses: are they out of fashion?
09 March 2017 - Orla Byrne
The High Court has applied the Makdessi test on penalty clauses to the terms of a side letter between a tenant of retail premises and the landlord. In doing so it held that the termination provision in the side letter amounted to an unenforceable penalty. Following Makdessi, when considering whether a clause is a penalty, the first › Read More
It’s a penalty! Isn’t it? Penalty clauses since Makdessi
25 October 2016 - Daniel Grimwood
In November 2015 the UK Supreme Court restated the test for penalty clauses in Cavendish v Makdessi. One year on, how is the test being applied by the courts? There has been much debate around whether provisions are primary or secondary obligations. Members of the court in Makdessi did not agree on this point on › Read More