Watch this two part webinar on deconstructed liquidated damages, Paul Darling and Richard Wilmot-Smith review recent developments alongside a number of barristers from 39 Essex Chambers.
Liquidated damages clauses can provide a remedy that is predictable and certain. The difficult, time-consuming and potentially expensive task of quantifying damages is avoided. But drafting an enforceable clause is not straightforward and when a dispute breaks out, it is not always clear whether a liquidated damages clause will be upheld by Judges, Adjudicators and Arbitrators.
Run in two parts, over successive days, this webinar looks at some of the recently answered and the remaining unanswered questions relating to liquidated damages provisions under English law.
In this webinar on 19th October 2021, chaired by Richard Wilmot-Smith QC, Part 1 will cover:
- Overview of the programme and the importance to the energy and construction industry of liquidated damages clauses in the standard forms and bespoke contracts – Marion Smith QC
- What did Cavendish Square Holding BV v. El Makdessi and Parking Eye v. Beavis  UKSC 67 decide? Joe-han Ho
- What is the effect of a liquidated damages provision dressed up or expressed as the price for a contractual right or option, rather than as damages for breach? What is a secondary obligation? Makdessi, Parking Eye and Heritage Travel & Tourism Ltd v. Windhorst  EWHC 2380 (Comm) David Brynmor Thomas QC
- What is the recent guidance from the Courts on the Makdessi tests? De Havilland Aircraft of Canada Limited v. Spicejet Limited  EWHC 362 (Comm) and Permavent Limited v. Makin  EWHC 467 (Ch) – Anna Lintner
- What defaults, other than delay, does the doctrine against penalties apply to? Does it apply to acceleration provisions, deposits and future clauses? Heritage Travel, GPP Big Field LLP v. Solar EPC Solution  EWHC 2866 (Comm), Bluewater Energy Services BV v Mercon Steel Structures BV  EWHC 2132 – Ben Olbourne
- How does the doctrine against penalties apply to a liquidated damage clauses where partial performance has taken place? Eco World-Ballymore Embassy Gardens Co Ltd v. Dobler UK Ltd  EWHC 2207 (TCC) – Juan Lopez
In this webinar on 20th October 2021, chaired by Paul Darling QC, Part 2 will cover:
- Are liquidated damages payable when work is never completed or accepted? Triple Point Technology, Inc v. PTT Public Company Ltd  UKSC 29 – Alexander Burrell
- How do courts interpret limitation of liability provisions? Triple Point Technology – Vivek Kapoor
- Can a party apply to the courts for a liquidated damages adjustment – upwards or downwards? Ruth Keating
- Does a liquidated damages clause limit the contractor’s liability for losses resulting from delay where it has been found to be void and inoperable? Eco World – David Hopkins
- What are the implications of Makdessi when negotiating a liquidated damages clause? What due diligence should you carry out to make the quantum in a liquidated damages clause penalty proof when negotiating? – Nicholas Higgs
- What are the lessons for drafters of commercial and construction contracts? Does a contractual estoppel work? Where is the wriggle room? Philippe Kuhn
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