Damages in the Shadow of a Penalty Clause - Tripping over policy in the Search for Logic and Legal Principle

Adrian Baron
April 2002
A paper based on the first prize winning entry in the Hudson Prize Competition
2001 presented to the Society of Construction Law in London on 9th April
2002.
Where the sum stipulated in a penalty clause is penal, the clause will
not be enforced by a court. The author considers whether or not such a
clause remains enforceable to limit the quantum of damages recoverable
at common law, looking at the case law over the years.
Introduction - The generally accepted indicia of a penalty -
Can a party claim more than the penal sum? - Does a penalty clause
operate as a limitation on damages? - Conclusion
The author: Adrian Baron is a senior associate with Deacons, lawyers,
in Brisbane, Australia; he holds the degrees of Bachelor of Arts, Bachelor
of Laws with Honours and Master of Laws, and is completing a PhD.
Text 16 pages.
PDF file size: 228k