Cavendish Square Holding BV v Talal El Makdessi
| Cavendish Square BV v Makdessi and ParkingEye Ltd v Beavis | |
|---|---|
|
|
| Court | Supreme Court of the United Kingdom |
| Full case name | Cavendish Square Holding BV v Talal El Makdessi |
| Decided | 4 November 2015 |
| Citation(s) | [2015] UKSC 67 |
| Case history | |
| Prior action(s) | Cavendish Square Holdings BV v Makdessi [2013] EWCA Civ 1539 |
| Court membership | |
| Judges sitting |
Lord Neuberger Lord Mance Lord Clarke Lord Sumption Lord Carnwath Lord Toulson Lord Hodge |
| Keywords | |
| Penalty clause, Consumer, unfair terms | |
Cavendish Square Holding BV v Talal El Makdessi [2015] UKSC 67, together with its companion case ParkingEye Ltd v Beavis, are English contract law cases concerning the validity of penalty clauses and (in relation to ParkingEye Ltd v Beavis) the application of the Unfair Terms in Consumer Contracts Directive.
In Makdessi because the issue of penalty clauses had been taken as a preliminary issue, the appeal was heard on the basis of an agreed set of facts (the court having not yet heard evidence or made any determinations). The agreed facts were summarised in the judgment of Lord Mance:
It was accepted by Mr El Makdessi for the purposes of the case that he did subsequently breach clause 11.2, and was thereby also in breach of his fiduciary duties. The proceedings were initiated by both Cavendish and the main holding company. The holding company's claim (for breach of fiduciary duty) was settled in October 2012 when it accepted a Part 36 payment of US$500,000 made by Mr El Makdessi. Cavendish’s claim was for declarations that Mr El Makdessi’s breach of clause 11.2 means that clauses 5.1 and 5.6 now have the effect stated. Mr El Makdessi argued that they were unenforceable penalty clauses.
In ParkingEye, the appellant, Mr Beavis, was the owner and driver of a vehicle which he parked in a retail shopping car park adjacent to Chelmsford railway station. The owner of the retail site and car park, British Airways Pension Fund (BAPF), had contracted ParkingEye Ltd, the respondent, to provide “a traffic space maximisation scheme”. The scheme involved the erection at the entrance to and throughout the car part of prominent notices, including the statements “2 hour max stay” and “Parking limited to 2 hours”, coupled with the further notice “Failure to comply … will result in a Parking Charge of £85”. Underneath, it also stated: “By parking within the car park, motorists agree to comply with the car park regulations”. Mr Beavis left his car parked for 56 minutes over the permitted two-hour period. He argued that the £85 charge demanded of him by ParkingEye (reducible to £50 if he had paid within 14 days) was an unenforceable penalty. Further or alternatively, he maintained that it is unfair and invalid within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999.
...
Wikipedia