Gladstones - CCJ letter advice please

Coupon-mad

levitron wrote: »

An interesting update from the owners of the restaurant. They reached out to me again via email:

Don't think it's saying much, but is there anything from here I could use?

Yes - it shows a lack of 'commercial justification' and it's considered by the on site retailers to be a regime that is set to penalise customers rather than for their benefit. This distinguished your case from the Beavis case, significantly and must be argued that way - in Beavis the Supreme Court Judges said it was a unique and complex case with an unusual 'legitimate interest' for recovering more than the usual 'loss or estimate of loss' (which most cases are still to be judged by):

28. ''A damages clause may properly be justified by some other consideration than the desire to recover compensation for a breach. This must depend on whether the ...[parking firm]... has a legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question.''

30. ''More generally, the attitude of the courts, reflecting that of the Court of Chancery, is that specific performance of contractual obligations should ordinarily be refused where damages would be an adequate remedy. This is because the minimum condition for an order of specific performance is that the ...[parking firm]... should have a legitimate interest extending beyond pecuniary compensation for the breach.''

32. ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation. The innocent party can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance.
In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''