KEYWORDS: PENALTIES

The High Court's decision in Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205 changed the approach to the law of penalties in Australia. In exciting news, there may be big changes for the law of penalties in England and Wales too.

On 21, 22, and 23 July 2015, the United Kingdom Supreme Court heard argument in two cases, Cavendish Square Holding BV v Makdessi and Beavis v ParkingEye Ltd, which squarely raise the future of the law of penalties in England.

Joanna Smith QC, the leading counsel for the appellants in the Cavendish appeal put her marker in the ground early on. Less than five minutes into her oral argument, she said:

"We are submitting that the logical conclusion to draw from our arguments is that the doctrine of penalties should be overruled; that the doctrine ... should go."

Video recording of the six sessions of oral argument, as well as the decisions below, is available on the United Kingdom Supreme Court's website:

https://www.supremecourt.uk/cases/ uksc-2013-0280.html

https://www.supremecourt.uk/cases/ uksc-2015-0116.html