in Makdessi v Cavendish Square Holdings BV [2013] EWCA Civ 1539—it has been emphasised that the guidelines should be read as presumptions, that each case needs to be assessed in its own context and, in particular, that caution needs to be exercised before jumping to the conclusion that a clause is a penalty simply because it is not in the nature of a genuine pre-estimate of loss. If there is a ‘new approach’ in the jurisprudence, it is that even clauses that seem to agree sums that are unreasonable and disproportionate might still be commercially justified; and that, where the contractors are commercial people with professional advice, the courts should be slow to disallow an agreed sum as penal (although, on the facts in Makdessi, the Court of Appeal ruled that the clauses at issue were penal).