Winter issue 2015

Abstract

Welcome to Issue 4 – the winter issue. In this issue we report on the Supreme Court decision in Cavendish Square Holdings v. Makdessi and ParkingEye Limited – Beavis (handed down on 4 November 2015) dealing with liquidated damage clauses and penalties. Readers may already to be aware that the rule against penalties has not been abolished but better clarified. The ‘new’ test will be much discussed and publicised, and so readers ought to note that the test is stated as ‘a contractual clause was penal if it was a secondary obligation which imposed a detriment on the contractbreaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation’. I have also focused some attention on a reader’s question submitted in the context of a contract that was meant to have been executed as a deed but was not. What does this mean, especially when the 6-year limitation period for a simple common law contract has expired? Readers may not like my answer! On equally substantive grounds we also report cases dealing with so-called ‘PFI contracts’ and the public sector treatment of tenders. We have also chosen to continue to look at some practical industry issues: The UK’s National Infrastructure Commission (NIC) became operational on 30 October 2015, enjoying cross-party support from the UK’s main political parties. We look at the following questions: What is the NIC? What is the NIC’s remit and specific tasks? What do commentators say about the NIC? I think readers ought also to be aware of certain important changes in the nuclear decommissioning sector and, in particular, the UK government’s decision in early 2015 to terminate the contract to decommission Sellafield – what does this mean for readers and the wider membership of the Institution of Civil Engineers? These are important topics for all of us involved in the construction law sector, and I hope readers will find this issue informative and a useful reference point.