Penningtons Manches Cooper
24 Experts
36 Contributions by Penningtons Manches Cooper Experts
PRACTICE NOTES
This Practice Note examines the need for a false statement of fact to ground an actionable misrepresentation. For the other essential components of a misrepresentation claim, see the following Practice Notes:
Misrepresentation—what is inducement?
Misrepresentation—falsity (fraudulent, innocent or negligent misrepresentation)
For guidance on the closely related cause of action in deceit, see Practice Note: The tort of deceit.
Key elements of an actionable misrepresentation
the representee relied upon a factual assertion made to them by the representor or someone acting on their behalf
the representor intended that statement to encourage the representee to enter the contract
the statement did in fact induce the representee to contract
the statement had the status of a representation
the representation was untrue
Where damages are sought (whether in addition to, or instead of, rescission), the representee must also show that the
Dispute Resolution
PRACTICE NOTES
What are cryptoassets and why are they frequently involved in criminal activity?
For the purposes of this Practice Note, we use the following meaning of a cryptoasset: information recorded on a blockchain that has been attributed particular features so that the information is treated as a stand-alone asset. For more, see Practice Note: Web 3.0, digital assets and cryptoassets-essentials.
Cryptoassets exhibit qualities that make them especially prone to criminal involvement. The most significant is arguably the decentralised model and the ecosystem in which they typically operate (namely, a standard permission-less blockchain).
Consider this illustration: to send money electronically, you effectively engage a third-party intermediary to carry out the transfer. That entity logs details of the transaction, most notably the identities of the payer and the payee. It will also usually be regulated and therefore obliged to monitor, report and/or deter financial crime, including money
Corporate Crime
PRACTICE NOTES
Scope of Note
This Practice Note centres on offences, sanctions and enforcement relating to the regulation of ecodesign and energy information in Great Britain, as provided in the Ecodesign for Energy-Related Products Regulations 2010, SI 2010/2617 (EEPR 2010), the Ecodesign for Energy-Related Products and Energy Information (Amendment) Regulations 2021, SI 2021/745 (EEPEIR 2021), and the Energy Information Regulations 2011, SI 2011/1524 (EIR 2011). It also sets out the enforcement position in Northern Ireland. For more on how the Northern Ireland Protocol (Windsor Framework) applies to environmental law, see Practice Note: What does the Northern Ireland Protocol (Windsor Framework) mean for the application of environmental law? This Practice Note forms part of a suite addressing the legal regime for product ecodesign, including:
GB Ecodesign of products—manufacturers, importers and authorised representatives
GB Ecodesign of
Environment
PRACTICE NOTES
This Practice Note provides guidance on the obligations imposed on manufacturers, importers and authorised representatives by ecodesign legislation as well as providing details on the statutory right to repair
The Ecodesign for Energy-Related Products Regulations 2010, SI 2010/2617 (as amended) (the ‘2010 Regulations’) prescribe the duties of the relevant parties concerning ecodesign across Great Britain. The Ecodesign for Energy-Related Products and Energy Information Regulations 2021, SI 2021/745 set requirements for particular ERPs and ERP categories, operating as an implementing measure for the purposes of the 2010 Regulations. The 2021 Regulations include:
definitions identifying which ERPs are within scope,
energy performance, resource efficiency and other product-specific ecodesign criteria for regulated ERPs,
the information and technical documentation that responsible persons must provide for those ERPs,
measurement methodologies and calculations used to determine the relevant data for regulated ERPs,
verification procedures for post-marketing surveillance for those ERPs, and
‘right to repair’ duties
Environment
PRACTICE NOTES
This Practice Note
This Practice Note outlines the key issues and pragmatic measures when pursuing enforcement involving trusts in family proceedings, covering offshore structures and how offshore trustees may respond to orders made in this jurisdiction. It addresses enforcing a variation of settlement, the effect of exclusive jurisdiction clauses, implementing findings of sham or invalidity, compliance with ‘judicious encouragement’ orders, and trustee submissions. At the outset of any case with trust elements, parties should evaluate whether any financial remedy order will be capable of enforcement, as this can shape the strategy from the drafting of the application onwards. A cost–benefit assessment is essential, especially where offshore trusts or assets are in play. Enforcement problems are less likely where the trust is governed by English law and the trustees and assets are situated in England and Wales. Under the Family Procedure Rules 2010 (FPR 2010), SI
Family
PRACTICE NOTES
This Practice Note
This Practice Note explains when a settlement will be treated as nuptial under section 24(1)(c) of the Matrimonial Causes Act 1973 (MCA 1973), or as ‘relevant’ for the purposes of Schedule 5, Part 2 to the Civil Partnership Act 2004 (CPA 2004). It examines the court’s jurisdiction to alter a nuptial or relevant settlement and the associated practice and procedure. It also outlines the court’s approach, particular issues concerning international trusts, and pertinent case law, including the Supreme Court decision in Prest v Petrodel Resources. A nuptial (marriage) or relevant (civil partnership) settlement is one established for the benefit of one or both parties, or their children, and made in contemplation of, or during, their marriage or civil partnership. The courts have adopted a broad construction of the expression; see: What is a nuptial settlement? The court may make a
Family
PRACTICE NOTES
Practice Note
This Practice Note outlines the process to be followed when seeking a pension sharing order or a pension attachment order within family proceedings, covering the form the application should take, the information required about the relevant pension scheme, the steps to be taken during the proceedings, how to draft the order, and the actions needed to put the outcome into effect. It also explains the requirements for deploying Form P1 or Form P2. An application for pension provision is made using Form A under the Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, typically alongside an application for other financial orders. The fast-track (shortened) financial remedy procedure is not available. See also Practice Note: Issuing financial proceedings in Form A (standard procedure). Where a pension order is pursued following an overseas
Family
PRACTICE NOTES
Practice Note
This Practice Note outlines the duties of suppliers and dealers in Great Britain (GB) under the ecodesign framework, with particular emphasis on product energy labelling. Dealers’ obligations within the ecodesign regime are largely confined to labelling, whereas suppliers face a broader set of requirements, briefly touched on below; however, the principal focus here is the supplier obligations concerning energy labels. Note that distinct obligations may apply in Northern Ireland.
The key point of reference for the labelling duties of suppliers and dealers is Assimilated Regulation (EU) 2017/1369 of the European Parliament and of the Council of 4 July 2017 establishing the energy labelling framework and repealing Directive 2010/30/EU, known in GB as the Energy Labelling Regulation 2017 (ELR 2017).
Supplier: ELR 2017, article 2(14) defines this as a manufacturer established in GB, the authorised representative of a manufacturer not established in GB, or an
Environment
PRACTICE NOTES
This Practice Note explains the definition and categories of life cycle assessments (LCAs) as set out in international standards such as ISO 14040:2006 and ISO 14044:2006. It also outlines the methodology, phases and stages of LCAs before highlighting their benefits and relevance.
What is a life cycle assessment?
Under ISO 14040, a life cycle assessment is the compilation and appraisal of inputs, outputs and the potential environmental effects of a product system across its whole life cycle. ISO describes a product system life cycle as the consecutive, interlinked stages from raw material acquisition or extraction of natural resources through to final disposal, commonly termed a cradle-to-grave analysis. A product system covers both goods and services. By examining the complete life cycle of a product or service, a thorough and integrated review of all inputs and outputs is undertaken, allowing the total
Environment
PRACTICE NOTES
More than one claimant can feature in a civil action, for instance where a defendant’s supposed misconduct has caused loss to several claimants in the same or a comparable manner. At times, the damage experienced by a single claimant is too limited to make the case economically worthwhile. Yet, when pursued by a cohort of claimants, it may become feasible because of the efficiencies that approach delivers. Where claims stem from the same or similar facts, or have produced the same or similar loss for multiple parties, it may likewise be prudent for the court to manage them collectively. Group claims (sometimes called class actions or multi-party claims) can be brought before the English courts using a number of procedural mechanisms. This Practice Note briefly sets out the criteria for each mechanism, and the guidance on suitability found in case law. It also weighs the
Dispute Resolution
PRACTICE NOTES
This Practice Note
It sets out a high-level comparison of the alternative procedural mechanisms available to claimants bringing civil group claims in England and Wales, outlining the principal routes.
adding multiple parties to a single claim form;
pursuing a sample or chosen set of lead claims;
applying for the claims to be managed through a group litigation order (GLO) under CPR 19; or
proceeding by way of a representative claim pursuant to CPR 19 where the individuals share the ‘same interest’ in a claim.
It goes on to examine the principal distinctions between issuing one claim form for many parties (a ‘joint claim’) and managing multi-party litigation under a GLO under CPR 19...
Dispute Resolution
PRACTICE NOTES
This Practice Note examines the need for the representor to have both intended and in fact caused the representee, through their misrepresentation, to enter into the contract. For guidance on the remaining core components of an actionable misrepresentation, refer to the following Practice Notes:
Misrepresentation—what statements can found a claim?
Misrepresentation—falsity (fraudulent, innocent or negligent misrepresentation)
The main elements of inducement in misrepresentation claims
The claimant must be able to demonstrate that the representation led them to enter into the contract...
Dispute Resolution
PRACTICE NOTES
This Practice Note reviews the range of insurance arrangements that parties involved in financial remedy cases might hold, such as life insurance/assurance, medical insurance and endowment plans. It also explains when it might be appropriate to implement a fresh policy, sets out the circumstances in which this should be put into effect within the proceedings, and notes drafting considerations when dealing with such policies. Individuals going through divorce or dissolution should audit the insurance products they own, whether in sole or joint names, including policies without a surrender value. The Practice Note concentrates on two areas that often raise more intricate issues: medical insurance and life insurance/assurance.
Medical insurance
In the UK, private medical treatment is available via private insurance, typically supplementing NHS provision. Employers may include such cover within their pay and benefits as part of a remuneration package, and schemes
Family
PRACTICE NOTES
Criminal investigation of cryptoassets
Owing to the decentralised design of many cryptoassets, pinpointing their holders, and curtailing dealings with them at any given moment, is more constrained than for other asset types. Tracing ownership and impeding transfers is, as a result, often significantly harder in practice. In the UK and across Europe, steps have been taken to counter this, including bringing cryptoasset exchange providers and custodian wallet providers (cryptoasset businesses) within anti-money laundering regimes (see Practice Notes: Offences under the Money Laundering Regulations 2017 (MLR 2017) and MLD5 and UK implementation—key provisions for financial services firms—one minute guide [Archived]). The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) Order 2023, SI 2023/612 (the Cryptoassets Promotion Order) has also broadened the restrictions on financial promotions in section 21 of the Financial Services and Markets Act 2000 to cover qualifying
Corporate Crime
PRACTICE NOTES
This Practice Note on cryptoassets (a type of digital asset) for dispute resolution lawyers outlines what cryptoassets are and why litigators must understand how they function and where they feature in their cases—namely, the kinds of claims that may arise (currently involving chiefly cryptocurrencies), whether forming the crux of the dispute or appearing within the surrounding factual matrix. See: Cryptoassets for dispute resolution lawyers—overview for recognition of the broader range of digital assets (such as non-fungible tokens (NFTs) and digital securities) to which comparable issues apply regarding the status of such assets under English law as to the creation, protection and enforcement of rights, particularly given their intangible quality, the novel technologies in which they are created/exist and the largely international (and thus seemingly fluid) character commonly associated with them. Note that this is a developing area of law; see Practice Note:
Dispute Resolution
PRACTICE NOTES
Using metatags and keyword advertising is lawful, yet it has prompted disputes where site operators select competitors’ trade marks as keywords to channel traffic to their own pages. The competitor’s trade mark is usually not visible in the advert or on the advertiser’s site, but the advert or the web link appears when an internet user enters the competitor’s mark as a search term. The central issue is whether employing third-party trade marks in metatags or keyword advertising amounts to infringement.
Terminology
‘Metatags’ are keywords and descriptions inserted in the invisible hypertext mark-up language (html) of websites. They indicate a site’s content. When an internet user types a keyword or description into a search engine, it searches the metatags as well as the visible text on websites to present a list of the most relevant sites (the ‘natural’ results). Website owners use metatags to improve the
IP
PRACTICE NOTES
A misrepresentation claim requires that the statement in question must have been untrue. This is the ‘falsity’ element. Once falsity is established, the subsequent enquiry is whether that untrue statement was made fraudulently or innocently, and if it was made innocently, there is then a further enquiry, namely whether any negligence was involved in the innocent making of that untrue statement. This Practice Note examines the falsity requirement in a misrepresentation claim and explains the distinctions and reasons for pleading fraudulent misrepresentation rather than negligent or innocent misrepresentation, with reference to the Misrepresentation Act 1967 (MA 1967). It also sets out a number of pointers for assessing a misrepresentation claim.
For general guidance on misrepresentation claims, including what they are (and are not) and the key constituent elements for bringing a claim for actionable
Dispute Resolution
PRACTICE NOTES
This Practice Note
This Practice Note outlines the various forms of overseas pension arrangements and their characteristics, together with valuation, procedural and enforcement considerations that family practitioners may face when overseas pensions arise within financial proceedings. When pursuing a financial remedy application, practitioners may come across a spectrum of pension or pension‑type schemes, including those accumulated or transferred abroad.
Close scrutiny of the rules governing any non‑UK pension scheme is essential, as they may differ markedly from those familiar in the UK. Certain overseas pensions are more readily realisable than UK schemes and can be treated as an additional pool of capital for distribution; accordingly, a conventional lump sum order might be made instead of a pension sharing or attachment order, to divide the available funds either immediately or on a deferred basis. Consider arranging life assurance to cover the period before the lump sum is
Family
PRACTICE NOTES
This Practice Note outlines the nature of a pension attachment order made in family proceedings (formerly known as an earmarking order) and identifies which pension benefit rights are capable of attachment and which are not. It also covers the core features of a pension attachment order, the risks and ways to reduce them, variation matters and tax effects.
Key features of pension attachment
A pension attachment order directs the person responsible for a pension arrangement (the PRPA) to pay a percentage of the following to the person without pension benefit rights (the non-member party), rather than to the person with pension benefit rights under the arrangement (the member-party):
pension income, and/or
pension commencement lump sum, and/or
lump sum payable in respect of the member-party’s death
A pension arrangement means an occupational pension scheme, a personal pension scheme, a retirement annuity contract, and
Family
PRACTICE NOTES
Practice Note
This Practice Note outlines the formal requirements to be followed when reviewing the terms and preparing the drafting of a financial order that makes provision for pension rights, and highlights potential traps and issues to address when agreeing and settling the order, including practical implementation considerations and the consequences of death. Standard financial orders concerning pensions have been published; see Precedent: Standard order 2.1—financial remedy order. Although the standard orders do not have the status of forms under the Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, Pt 5, the default position is that they ought to be used, with parties and the court permitted to adapt and refine them to such extent as is appropriate; see Practice Note: Standard orders—general principles...
Family
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