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Last updateTue, 24 Feb 2015 5pm

Noel McMichael and Clare Arthurs analyse the impact of Makdessi

The Supreme Court has re-examined the rule against penalties in contracts. Its judgment in the joined cases of Cavendish Square Holding BV v El Makdessi; ParkingEye Ltd v Beavis [2015] has been widely welcomed as introducing greater clarity and flexibility to this somewhat opaque principle. Just how much certainty will be gained in practice remains to be seen. What is clear is the Supreme Court’s continued determination to protect the sanctity of contracts and minimise judicial interference in freely negotiated agreements after the event (see also Arnold v Britton [2015]).

John Houlden, Stephanie Rickard and Patrick Parkin discuss the use of new standard forms for public procurement notices

The European Commission recently published a set of new and revised standard forms for publishing public procurement notices (Implementing Regulation (EU) 2015/1986). The Crown Commercial Service (CCS) published a policy note (Action Note 17/15) on 2 December 2015 confirming government policy that all contracting authorities should use the new forms.

Mark Lawrence and Jonathan Pratt investigate recent Supreme Court guidance on break rights and implied terms

The year 2015 saw a series of landmark Supreme Court decisions on contract law. In Arnold v Britton [2015], the Supreme Court addressed the tension between ‘literal’ and ‘purposive’ approaches to the interpretation of contracts and came down on the side of giving words their natural meaning. In Cavendish Square Holding BV v El Makdessi; ParkingEye Ltd v Beavis [2015], the rules on penalty clauses were overhauled.

Elizabeth Jenkins looks at the implications of housing shortage

It is almost impossible to avoid or ignore the fact there is a ‘housing crisis’ in the UK which, if not tackled, is going to severely limit the economy’s growth and the government’s objective to reduce the economic deficit. The housing crisis is not just about the need for more general housing, housing for first-time buyers or housing to rent, it includes all types of tenures and in particular affordable housing for the elderly and vulnerable. The answer of course is to increase the supply of housing but the more difficult question is how to do this. A combination of solutions is required to ensure more housing is built – particularly affordable housing that is suitable for the elderly and those with social needs. These solutions will involve different participants, different tenures and different financial models.

Victoria Hutton outlines changes to the statutory challenge of planning decisions and orders

Those involved in procurement for development projects would be wise to take heed of certain legislative amendments to statutory challenges of planning decisions and orders which, at the time of writing, are due to come into force on 26 October 2015. In brief, the amendments involve the introduction of a permission stage prior to proceeding with the challenge, a small amendment to the date the time limit starts to run for certain statutory challenges and the introduction of an opportunity for applicants to bring statutory challenges to certain costs orders made in the planning context. The proposed changes may have significant repercussions for those seeking to manage the risks of a challenge being brought to the grant or refusal of permission in the procurement context.

David Sawtell considers some key points of contract interpretation

It is trite to state that the purpose of contractual interpretation is to establish the objective intention of the parties to the contract. In what circumstances, however, should the contract be interpreted literally, which appeared to be the result in Arnold v Britton [2015]? Were different principles at work in the recent Supreme Court decision in Rainy Sky SA v Kookmin Bank [2011] where a more ‘purposive approach’ was adopted?

James Parker reviews the second UK ‘business and commercial’ DCO project

How the UK plans and delivers its major development is crucial to making sure the country gets what it needs. This article explores the latest developments and the use of the new consenting regime.

Simon Lewis examines the duty of good faith in commercial contracts

English contract law does not like the idea of a duty of good faith which can be implied into commercial contracts as a matter of law. The imposition of such a duty has been seen as inimical to the adversarial tradition of negotiated agreements and the principle of freedom of contract. This approach is encapsulated by Bingham LJ in Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1987]: