Last week I participated in Practical Law’s breakfast roundtable, Liquidated damages at a turning point?. The roundtable was led by Adrian Williamson QC and William Webb, barristers at Keating Chambers.
As I said when I wrote about the last breakfast roundtable on adjudication, while Chatham House rules do not permit me to reveal all that was said, what I can tell you is how enjoyable the session was.
The session started with Adrian’s overview of the classic “in terrorem” approach to liquidated damages and penalty clauses (as set out by Lord Dunedin in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd), and then moved on to what he described as a “modernising approach”, through the cases of:
- Philips Hong Kong Ltd v The Attorney General of Hong Kong.
- Lordsvale Finance plc v Bank of Zambia.
- Cine Bes Filmcheck ve Yapimcilik AS v United International Pictures.
Brief mention was also made of Jackson J’s judgment in Alfred McAlpine Capital Projects Ltd v Tilebox Ltd.
Thereafter, William took the lead and brought the topic of liquidated damages up-to-date, with a brief run through of the more recent cases and the emerging ideas from those cases, including:
Once the law had been set out, the delegates were split into two groups, with Adrian and William each chairing a group. Each group was provided with example scenarios and they had to work out whether, in each situation, the clause the parties had agreed in their contract was a penalty or was an enforceable liquidated damages provision.
These workshops are a fantastic opportunity to receive practical guidance and work through the challenges and issues that everyone faces, and to meet and network with industry professionals. They are provided by Practical Law’s online learning solution at legalpd.com.
If you missed this session, the slides are available here.
The Supreme Court has heard the appeal in Cavendish Square Holding BV v El Makdessi and ParkingEye Ltd v Beavis [2015] UKSC 67, finding that neither the clause in ParkingEye nor the provisions in Cavendish were a penalty. See Legal update, Supreme Court restates penalty rule.