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PRACTICE NOTES
Statutory interpretation in UK courts: purposive approach, statutory definitions, Interpretation Act 1978, Human Rights Act 1998 s 3, EU (Withdrawal) Act 2018, presumptions, canons of construction and extrinsic aids
Introduction to statutory interpretation The aim of statutory interpretation is to determine the legal meaning of a statute, that is, the sense that expresses the legislator’s intention. The clearest guide to that intention is the statutory wording itself, read in its context and with its overall purpose in mind, and its broader legislative setting. Courts should seek to fulfil the purpose of legislation by construing its language, so far as they can, in the manner that most effectively serves that purpose. Put differently, the courts’ default method is purposive, and every enactment is to be construed with that end in view. There is a starting presumption that the grammatical and ordinary sense of an enactment reflects the meaning intended by the legislator. Where an enactment reasonably bears only a single meaning, and no other interpretative tools or...
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PRACTICE NOTES
Fiduciary duties in England and Wales: identifying fiduciaries; no-conflict, no-profit and confidentiality; secret commissions; joint ventures and credit brokers; charities; waivers and remedies
This Practice Note addresses identifying a fiduciary, fiduciary duties and obligations, the no conflict rule, the no profit rule, a fiduciary's duty of confidence, and the remedies available for breach of fiduciary duty. Who is a fiduciary? There is no definitive catalogue of relationships that give rise to fiduciary obligations at common law in every situation universally. Certain relationships are inherently fiduciary, eg trustee and beneficiary, solicitor and client, principal and agent, business partner and co-partners, together with mortgagor and mortgagee. The obligations of some fiduciaries have been set out in statute; for instance, trustees owe a statutory duty of skill and care under section 1 of the Trustee Act 2000 ( Tr A 2000), and directors' relationships with their companies are addressed in the Companies Act 2006 too. For guidance on directors' fiduciary duties, see Practice Note: of directors for further detailed...
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PRACTICE NOTES
ADR in Civil Proceedings: Definitions, Main Processes, and Comparison with Litigation (England and Wales)
Definition of ADR Alternative dispute resolution ( ADR) is defined in the CPR Glossary as a collective label for methods of settling disputes other than through the usual trial process. Some courts adopt the term ‘negotiated dispute resolution’ ( NDR) to describe resolution by alternative means; for ease, this Practice Note uses ADR. For guidance on how ADR is addressed in the various court guides, see Practice Note: ADR and NDR in the court guides. In essence, ADR is a means of resolving a dispute outside the court system. It typically involves a neutral third party who either helps the parties reach a negotiated outcome, or issues a determination of the dispute that is legally binding. A binding result can follow where the agreement to refer the dispute to ADR so provides. There are multiple forms of ADR processes. For an outline of the...
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PRACTICE NOTES
United Kingdom constitutional law sources: legislation, constitutional principles and case law, international and human rights law, prerogative powers, conventions, and parliamentary sovereignty
In brief The British constitution is uncodified, meaning it does not spring from a single constitutional document or code. It draws on a wide range of written and unwritten sources. Alongside the principal written sources of law in England and Wales—legislation (which has also introduced international and human rights principles into our constitution) and the common law—the constitution also rests on two further unwritten bases within this system: the prerogative, and non-legal constitutional conventions. In addition, on one view the basic or prevailing principle of our constitution, Parliamentary sovereignty, is ultimately grounded in political fact rather than in law. Legislation Legislation is the foremost source of constitutional law. Acts of Parliament may set out detailed constitutional rules, or even pass authority to create them to ministers or to others. Under the doctrine of Parliamentary sovereignty, legislation is traditionally regarded as taking precedence over any other form or kind of...
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PRACTICE NOTES
Agency and third parties: authority, liability and remedies—disclosed/undisclosed principals, deeds and powers of attorney, misrepresentation and fraud, tort and conversion, payments, and breach of warranty of authority
This Practice Note addresses the relationships that arise among principals, agents, and the third parties with whom the agent transacts on the principal’s behalf. It reviews the principal’s exposure for its agent, the scope of an agent’s authority (including remedies for any excess or breach of authority), fraud and misrepresentation, and the concepts of disclosed and undisclosed principal. Principal’s liability for acts of agent A principal will generally be answerable for all acts carried out by an agent within the agent’s authority, whether liability sounds in contract or in tort. Authority encompasses the agent’s actual, apparent (ostensible), or usual (customary) authority. For further detail, see Practice Notes: Scope and authority of the agent and Forming enforceable contracts—agent’s authority to contract. An agent’s authority derives from the principal, and it should be recognised at the outset that the capacity to bind a principal in contract does not, of...
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PRACTICE NOTES
Separation of powers in the UK constitution: doctrine, devolution, executive–legislative fusion, executive dominance, judicial independence and review, and comparative perspectives
Source of the doctrine of the separation of powers The roots of the doctrine of the separation of powers are commonly linked to John Locke’s Second Treatise of Government (1689), where he argued that the executive and legislative functions ought to remain distinct. This set out a clear insistence on their proper institutional separation. He warned that human frailty, ever prone to clutch at authority, makes it unsafe for those who draft the laws to hold in their hands the power to enforce them, since they might exempt themselves from obeying the measures they create. The doctrine’s most influential formulation, however, is that of Baron de Montesquieu, reflecting on the English constitution in L’ Esprit des Lois (1748), where he identified judicial authority as a third branch of government. He contended that when legislative and executive powers are concentrated in a single person, or within one body of...
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PRACTICE NOTES
Clinical negligence: duties owed by clinicians and others, scope of duty, and breach—Bolam/Bolitho, Montgomery, Khan v Meadows; non-delegable duties, non-patients and secondary victims
The duty of care Healthcare practitioners owe their patients a duty of care. That obligation, arising in the course of their care, requires the exercise of reasonable care to: obtain a full and adequate medical history thoroughly explore the patient’s symptoms and concerns formulate appropriate and reasonable differential diagnoses arrange referrals to relevant specialists where required take action to pursue all reasonable measures to safeguard the patient’s health deliver a reasonable and proportionate course of treatment follow up with the patient afterwards where that is reasonably necessary For guidance on identifying the proper defendant in a clinical negligence claim, see Practice Note: Identifying the correct defendant in clinical negligence claims. The duty is not confined to medical practitioners alone; it may extend further. Non-clinical staff Employees within a healthcare organisation or facility may owe a direct duty to...
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PRACTICE NOTES
Subrogation in Insurance and Reinsurance: Legal Basis, Equitable Lien, Top-down Recoveries, Co‑insureds and Waivers, Limits and Practical Guidance on Pursuit, Allocation and Interaction with Assignment, Contribution and Indemnities
This Practice Note offers guidance on subrogation in the insurance context. It sets out the legal basis, purpose and practical operation of subrogation, and indicates how to tell rights of subrogation apart from other mechanisms such as assignment or contribution. It also considers common situations, including subrogation against co-insureds, the use of express subrogation clauses and waivers of subrogation. In addition, it covers how recoveries are allocated and the insured’s duty to co-operate with insurers. What is the right of subrogation? In insurance and reinsurance, the right of subrogation allows an insurer or reinsurer, once it has indemnified the (re)insured, to step into that party’s position and bring proceedings in the (re)insured’s name. For this Practice Note, ‘insurer’ should be read as ‘(re)insurer’ and ‘insured’ as ‘(re)insured’. The insurer may then exercise any of the insured’s rights or remedies against third parties arising from the...
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PRACTICE NOTES
Agency under UK law: formation (including undisclosed principals), capacity, authority, types, fiduciary duties, powers of attorney, Commercial Agents Regulations, competition and tax
This Practice Note provides an overview of agency. It outlines the core features of the relationship between principal and agent, covering methods of appointing an agent to represent a principal, the various forms of appointment, and the scope of an agent’s authority to act for a principal. It also explains the extent and source of an agent’s power when acting for the principal. It identifies how appointments are made and the breadth of authority conferred in practice. Nature of agency Agency arises where a principal engages an agent to act in accordance with their instructions and for them, for defined objectives. In commercial settings, this typically involves introducing or finalising contracts between the principal and customers or other third parties. In practice, ‘agent’ is used loosely to describe, eg, distributors whose functions resemble those of agents, yet who are not agents in law......
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PRACTICE NOTES
Insurable Interest across Marine, Property, Life, Liability, Construction and Reinsurance: Legal Tests, Timing, Consequences, Subrogation, Co-insurance, Double Insurance, Assignment and Reform
What is insurable interest? This Practice Note examines insurable interest, including its role in construction and liability insurance. It also addresses insurable interest in subrogation, co-insurance and double insurance, and the Insurable Interest Bill. It is a doctrine of insurance contract law that requires the insured to have a legally recognised relationship with the insured subject-matter. Broadly, only those who have some connection to the subject-matter of the insurance contract, by which they would be prejudiced by its loss, or may incur liability in respect of it, can insure that subject-matter. Conversely, a person who lacks such a relationship has no insurable interest and therefore cannot take out insurance on that subject-matter. The burden lies on the insured to establish that an insurable interest exists. The rationales for requiring an insurable interest are that: it is the characteristic of an insurable interest that...
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PRACTICE NOTES
Principal–Agent Relationships: Appointment Types, Agents’ Fiduciary and Contractual Duties, Principals’ Obligations, Remedies, and Agency Contract Considerations
This Practice Note sets out the respective rights and responsibilities of a principal and their agent, whether arising under law by implication or expressly contained within the agency agreement. It reviews the nature and status of an agent’s appointment and the fiduciary obligations an agent owes to the principal. It also outlines remedies for breach of duty, including actions for damages and for an account... General In business contexts, the rights and duties of principal and agent are usually captured in a written agency agreement. Where the agreement is silent, the law may imply additional obligations. Notably, the Commercial Agents ( Council Directive) Regulations 1993, SI 1993/3053, set out specific rules for commercial agents which, in most circumstances, cannot be excluded by contract. For issues concerning commercial agents, see Practice Notes: Commercial agency, Relationship of commercial agent and principal, and Termination of...
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PRACTICE NOTES
Employee duty of fidelity and fiduciary obligations: scope, competition and preparatory acts, confidentiality, disclosure, directors’ duties, and remedies including account of profits and the Trade Secrets Regulations 2018
Duty of fidelity Every employee owes their employer a duty of fidelity. This duty is often described as a duty of good faith or loyalty. Fidelity is a wide notion, comprising several more specific obligations, some of which overlap with each other and with the duty of trust and confidence (see Practice Note: The term of trust and confidence): to act honestly—the duty requires employees deal with their employer truthfully (refer to: Duty of fidelity—honesty, below) not to compete—during employment, employees must not work for a rival organisation, including one they have founded (see: Duty of fidelity—competition and Duty of fidelity— Preparation to compete, below) not to secure a secret profit—employees must not earn undisclosed profit and must hand over to the employer any sums obtained (see: Duty of fidelity—secret profit, below) to disclose...
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PRACTICE NOTES
Guide to LMA leveraged finance precedents: term sheets, mandate and primary syndication documents, senior and super senior facilities, mezzanine drafting, intercreditor agreements, and RFR-based interest
Development of the Loan Market Association ( LMA) documentation The initiative to create the LMA’s investment grade suite started in 1998, driven by market calls for a uniform syndicated facility agreement. The project emerged in response to market demand for a standardised syndicated facility agreement. Development of the LMA’s leveraged materials followed a comparable path: an initial facility agreement for leveraged acquisition finance transactions was released in 2004, with the recommended Intercreditor Agreement for leveraged acquisition finance (senior and mezzanine) issued in 2009. Since then, the LMA has continued to issue further precedents to reflect demand and changes in the market. There are now standard forms available for deals involving senior secured notes. In addition, there are forms for structures that feature both senior secured notes and high yield notes, recognising the significant volume of transactions financed in part or in full through high yield debt. The...
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PRACTICE NOTES
Malus and Clawback in UK Executive Remuneration: Regulatory Context, Triggers, Periods, Enforcement, Drafting and Tax
The use of malus and clawback The concept that performance-based cash or share awards for executives and senior employees can be reduced (malus) or recovered (clawback) when a material adverse event occurs or later comes to light is now widely accepted and embedded in market practice. Although rooted in the financial services industry, malus and clawback are now standard elements of incentive plans operated by companies listed in the equity shares (commercial companies) category in the UK. This development flows directly from the Financial Reporting Council’s ( FRC) 2014 revisions to the UK Corporate Governance Code in response to the global financial crisis, together with the subsequent expectations of the UK’s major institutional shareholders. The Department for Business, Energy & Industrial Strategy’s ( BEIS) March 2021 consultation on modernising the UK’s audit and corporate governance regime further reinforces that deploying malus and clawback within...
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ENERGY
EU NZIA (Regulation (EU) 2024/1735) progress report: 33Mt CO₂ injection capacity by 2030 versus 50Mt target; only 16 of 44 obliged entities confirm plans

The European Commission has issued its inaugural progress report on the EU CO₂ injection capacity target set under Regulation (EU) 2024/1735, the Net-Zero Industry Act (NZIA)......

29th May
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CONSTRUCTION
RE:UK backs proportionality in higher-risk building work categorisation, clearer rules for mixed-use buildings, and guidance on when minor works trigger building control gateway escalation

Real Estate:UK (RE:UK) has issued its reply to the Ministry of Housing, Communities and Local Government (MHCLG) consultation concerning classification of higher-risk building work......

29th May
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ENERGY
DESNZ response: voluntary LCA-based embodied emissions reporting for steel, cement and concrete; no new classifications; procurement guidance in 2027; exploring eco-labelling and mandatory standards

DESNZ, the Department for Energy Security and Net Zero, has issued a reply to its consultation on a policy framework aimed at expanding market for low-carbon industrial goods......

29th May
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IP
UK IPO and Vinted publish consumer guidance on spotting counterfeits on second-hand resale platforms, amid increased Trading Standards and PIPCU enforcement

New advice issued by the Intellectual Property Office (IPO) to help shoppers spot fake goods on second-hand online resale platforms......

29th May
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Popular documents

Using the Judicial College Guidelines to assess general damages in personal injury claims

When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...

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Tomlin orders in England and Wales: CPR guidance on drafting, confidentiality, approval, variation, enforcement, limitation, CCA issues, court-specific requirements, sample wording and precedents

This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...

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Precedent: Deed of Surrender of Lease with Optional Premium, Settlement and Release, Landlord, Mortgagee and Guarantor Consents, Reimbursement and HM Land Registry Provisions (England and Wales)

Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...

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Precedent Statutory Declaration: Standard Wording under the Statutory Declarations Act 1835

I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...

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