… My starting point is clarity and certainty in the common law. Two judgments from 2015 come to illustrate this. First, Cavendish Square Holdings BV v Talal El Makdessi and Parking Eye v Beavis (2015), two joined appeals. The first, Cavendish, involved an agreement into which Cavendish had entered into with Makdessi, under which Cavendish would buy a controlling stake in an advertising and marketing group’s holding company. The agreement contained restrictive covenants, the breach of which by Makdessi would render him ineligible to receive the two final instalments of the price paid by Cavendish for the company. The covenants were breached. The issue before the Supreme Court was whether the covenants amounted to contractual penalty clauses and were consequently unenforceable at common law. The second appeal, ParkingEye also concerned alleged penalty charges. The question in that case was whether a parking charge of £85 charged for overstaying a two-hour parking time limit in a car park was also a penalty charge, and hence again unenforceable at common law. The Supreme Court in both cases held that they were not penalties … (more)
Lady Carr of Walton-on-the-Hill, Lady Chief Justice, ‘The Ever-Developing Common Law’ (Seventh Annual Toulson Memorial Lecture 2026, University of Surrey, 4 March 2026).
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