Judgment in the case was handed down on 4 November 2015. The definitive version of the judgment is that which appears on the Supreme Court website. There are 3 differences between the definitive version of the judgment and that handed down on 4 November 2015. The Supreme Court has indicated that these amendments were made on 5 November 2015.
The amended or additional parts of the judgment are presented here in bold for clarity.
At , Lord Mance amended “vertragsstrafe” to “Vertragsstrafe” – simply correcting a typographical error.
At , Lord Mance inserted a short clarification as to the legislative regime applicable to regulation of parking by public authorities:
These authorise a penalty charge of £50, reducible, if paid within 21 days, to £25 for parking in contravention of one of the statutory or regulatory provisions listed in Schedule 7, paragraph 4 of the Traffic Management Act 2004.
Was changed to:
These authorise a penalty charge of £50, reducible, if paid within 21 days, in the case of a contravention detected by an approved device (such as CCTV) or 14 days in other cases, to £25 for parking in contravention of one of the statutory or regulatory provisions listed in Schedule 7, paragraph 4 of the Traffic Management Act 2004.
The most significant change is at . Lord Clarke added a comment to his short, concurring judgment which clarifies his stance as to whether the relevant clauses in Cavendish v Makdessi set out primary or secondary obligations:
I agree with the reasoning of Lord Neuberger and Lord Sumption, Lord Mance and Lord Hodge.
Was changed to:
I agree with the reasoning of Lord Neuberger and Lord Sumption, Lord Mance and Lord Hodge, save that on the question whether clauses 5.1 and 5.6 are capable of constituting penalties, I agree with Lord Hodge in having an open mind about clause 5.1, and in concluding that clause 5.6 is a secondary obligation – see paras 270 and 280 respectively.
This clarification from Lord Clarke means that the majority were split 50/50 as to the classification of the relevant clauses in Cavendish v Makdessi. Although a factual issue, rather than a point of legal principle, the distinction between primary and secondary obligations as discussed in the judgments is one of the most controversial aspects of the decision. The importance for those drafting commercial contracts is clear. These amendments amplify an issue which is already the subject of much discussion: the question of when the doctrine of penalties will and won’t apply requires refinement and clarification through case law.