header-logo header-logo

04 December 2015 / Thomas Samuels
Issue: 7679 / Categories: Features , Commercial
printer mail-detail

Consumer confusion

web_samuels_0

Have consumers really lost on penalties, asks Thomas Samuels

On 4 November, the Supreme Court handed down in its decision in the conjoined appeals of Cavendish Square Holdings BV v El Makdessi and Beavis v ParkingEye Ltd [2015] UKSC 67, [2015] All ER (D) 47 (Nov). For the first time in a century the UK’s highest court re-examined from first principles the common law rule against penalties and, in the case of Beavis, the proper approach to the Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083) (now replaced by Pt 2 of the Consumer Rights Act 2015 (CRA 2015)).

Facing facts

Factually-speaking, the appeals in Cavendish and Beavis could not have been more different. The former related to a multi-million dollar default provision and the latter an £85 parking charge. However, the issue in both was the same: were the relevant clauses unenforceable penalties? The court answered the question, in both cases, in the negative. The mere fact that the clauses imposed consequences which went beyond a genuine pre-estimate of the innocent party’s loss did not, of itself, mean that the clauses were penal.

If you are not a subscriber, subscribe now to read this content
If you are already a subscriber sign in
...or Register for two weeks' free access to subscriber content

MOVERS & SHAKERS

Gateley Legal—Jack Kelly

Gateley Legal—Jack Kelly

Gateley Legal expands Midlands residential development team

Gibson Dunn—Richard Surtees

Gibson Dunn—Richard Surtees

Gibson Dunn adds employee benefits and executive compensation practice in London with partner Richard Surtees

Laytons ETL—Alec Cameron

Laytons ETL—Alec Cameron

Laytons ETL appoints new partner and head of intellectual property disputes

NEWS
A series of recent decisions has clarified important principles across property law, from perpetuities to lease renewals and public rights over land
Employers cannot rely on wellbeing services alone to defend workplace stress claims after a High Court decision awarding almost £1m to an overworked employee
Andy Burnham's brand of 'Manchesterism' could offer fresh thinking on legal aid and access to justice if it reaches Westminster, according to Roger Smith, NLJ columnist and former director of JUSTICE
The constitutional fallout from a change of prime minister, rather than the politics, is under scrutiny as questions arise over the limits of executive authority in a leadership transition
The legal profession is undergoing a fundamental shift from selling services to creating technology-enabled products, according to Professor Luke Mason, Head of School of Law at Regent's University London
back-to-top-scroll