Commentary: Court Of Appeal Strikes Down “Clever Drafting” Designed To Circumvent The Penalty Doctrine: A Case Of Too Clever By Half?
In 2020, the Court of Appeal (the “CA”) reiterated that the penalty doctrine is restricted in its application to secondary obligations; primary obligations are insulated from the doctrine: Leiman, Ricardo and another v Noble Resources Ltd and another [2020] 2 SLR 386. It described this restriction as the “threshold issue.” The rationale for this differential …