Monthly commercial law update: Top 5 developments in November

As we hurtle towards 2016 at an alarming rate, the Commercial PSL Team are here to provide you with a whistle-stop tour of the key commercial developments from November:

Contracts: Supreme Court rules on penalties in Parking Eye and Cavendish v Talal El Makdessi cases

At the beginning of the month, the Supreme Court handed down its joint judgment in ParkingEye Limited v Beavis, and Cavendish Square Holding BV v Talal El Makdessi [2015] UKSC 67, two associated cases on penalty clauses.

In one of the most hotly anticipated commercial decisions of the year, the court reviewed the development of the law of penalties and clarified the test for assessing whether a clause is an unenforceable penalty.

The issues in ParkingEye were whether an £85 overstay charge in a private car park was an unenforceable penalty and whether it was unfair under the Unfair Terms in Consumer Contracts Regulations 1999, SI 1999/2083 (now replaced by the Consumer Rights Act 2015 (CRA 2015)). In El Makdessi, the court considered whether the penalty rule should apply at all to sophisticated commercial parties and, if it should, whether certain clauses in a share purchase agreement were unenforceable penalties.

The court declined to abolish or extend the penalty rule but has clarified the test. The ParkingEye appeal was dismissed but the El Makdessi appeal was allowed; however in both cases the terms concerned were ruled not to be unenforceable penalties. Read our blog for further information.

Advertising and marketing: ASA to start using new Prioritisation Principles from 23 November 2015

The Advertising Standards Authority (ASA) has announced that it will use its new prioritisation principles from 23 November 2015. The pri