Tag Archives: cavendish v el makdessi

There Is Always One

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IndemnitiesI was asked to give a paper in Adelaide last week on the topic of “Drafting Indemnities: Getting the Details Right”. It was part of a marathon one day session where Legalwise Seminars enabled practitioners to collect 10 CPD points in a single day. It is a pretty fair guess that the delegates (there were quite a number of them) were there because they needed the CPD points, and not so much because they were lying awake at night worrying about how to draft their indemnities.

I have had bigger challenges. It’s not long ago that I was asked to give an after dinner speech on the subject of insolvency in the construction industry. It was a topic of interest because there has been quite a lot of insolvency in the construction industry around here recently. The challenge was that I was told to try to make it funny!

Anyway, I did my best to make this rather dry topic of drafting indenity clauses as interesting as I could, and as far as I could tell, no one actually fell asleep.

After these events, the conference organisers, Legalwise Seminars, collate and send round the evaluation forms that the delegates are asked to fill in, so that speakers can get some feedback on how the session was received. I thought Continue reading →

Talking, Talking

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I have a couple of talks this coming week, in Adelaide on Wednesday and then in Brisbane on Thursday.

The Wednesday talk is on indemnities, with the snappy title of Drafting Indemnities: Getting the Details Right. The session is part of a day run by Legalwise seminars – I suspect most people will be there because of the need to earn CPD points.

More fun will be the session in Keating 2015Brisbane on Thurday, where I will be joining my colleagues from my London chambers – Keating Chambers – Marcus Taverner, Adam Constable and Jennie Wild at a SoCLA event, debating the impact of Cavendish v Makdessi and other recent cases. It will take the form of a sort of debate, Jennie setting the scene, then Adam suggesting that not much has changed, and then me suggesting that the revival and expansion of the doctrine of relief from forfeiture might well be really quite a big change. I have Continue reading →

Penalties – a Brief Guide to Three Recent Revolutions

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Lord Dunedin

Lord Dunedin

For some reason which is not entirely obvious, students of construction law love writing papers about the distinction between liquidated damages clauses and penalty clauses. Traditionally, it has been relatively firm ground, and in particular, everybody trots out the dicta of Lord Dunedin in Dunlop v New Garage[1].

But all of a sudden, things have begun to change. First there was the decision of the High Court of Australia in Andrews v ANZ. Then there was the follow up decision in Paciocco. Now there’s been the decision from England in Cavendish v El Makdessi.

The short story it is that if you have got one of those old papers, which you might written, or someone else might have written, which trots out the famous dicta of Lord Dunedin, you might as well throw it away. It should go the same way as flared trousers, cheesecloth shirts and your old ABBA LPs. Quite what we have in its place depends somewhat on where you sit in the common law world. Also changed, but not quite gone, is the interesting but still somewhat speculative notion that some time bar provisions, which contain particularly onerous notice provisions, might be circumvented by the equitable doctrine of relief from forfeiture. To get to a discussion of this concept, you will have to read on a bit.

Before getting to these new cases, we should (as in all good funerals) acknowledge Continue reading →