[1] The case should not be confused with Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd,[2] which held that the same resale price maintenance practice was unenforceable against a third party reseller as a matter of the English rule of privity of contract.

To assist this task of construction various tests have been suggested, which if applicable to the case under consideration may prove helpful, or even conclusive.

These appeals, which raised similar legal issues, gave the Supreme Court an opportunity to review the law on penalties based on Dunlop.

Lord Neuberger, President of the Supreme Court, observed at the commencement of his joint judgment with Lord Sumption, a justice of the court:The penalty rule in England is an ancient, haphazardly constructed edifice which has not weathered well, and which in the opinion of some should simply be demolished, and in the opinion of others should be reconstructed and extended.

For many years, the courts have struggled to apply standard tests formulated more than a century ago for relatively simple transactions to altogether more complex situations.