Legal Practice Notes

This Practice Note sets out a high-level guide to Regulation ( EU) 2022/1925, the EU Digital Markets Act ( DMA), viewed from an Irish standpoint. It addresses the DMA’s effects on the Irish marketplace, outlines the suite of rules the DMA introduces, explains how gatekeepers are designated, and describes the European Commission’s enforcement toolkit under the regime. It also considers worldwide compliance expectations, the forthcoming steps towards rolling out the DMA, and the key dates for meeting the obligations it imposes. The Digital Markets Act On 15 December 2020, the European Commission (the Commission) unveiled proposals for two EU-wide measures to govern digital services-the Digital Services Act and the Digital Markets Act. On 27 October 2022, the Commission completed adoption of the DMA by publishing its text in the EU Official Journal, triggering a six‑month transition period before the DMA became...

This Practice Note This Practice Note explores the principal procedural steps for bringing a statutory derivative claim under sections 260–264 of the Companies Act 2006 ( CA 2006), covering the permission application and the test the court will apply. It offers guidance on construing and applying the relevant CPR provisions. Depending on the court dealing with your matter, you should also be alert to any additional requirements—see Court-specific guidance below. Practitioners should note that, with effect from 6 April 2023, the CPR provisions concerning derivative claims were amended. In particular, CPR 19 was updated and CPR PD 19C was amended and re-designated as CPR PD 19A. These changes did not materially alter the substance of the approach to derivative claims, but the numbering of the pertinent provisions was changed. Judgments issued before 6 April 2023 may therefore refer to the previous provisions and...

This Practice Note offers practical direction on the relevance and distinctions of the like product in trade remedy inquiries. It sets out the reasons for identifying like products in anti-dumping, subsidy and safeguard inquiries. The note explains how the concept of like product guides the scope of an inquiry, the definition of the domestic industry and the assessment of injury. Introduction Trade remedy inquiries may vary in the subject under examination. Anti-dumping inquiries consider whether a product is sold in the export market for less than it is sold in the exporter’s home market. Countervailing inquiries consider whether the imported product benefits from a subsidy granted by the exporting Member State. Safeguard inquiries, in turn, consider whether goods are entering in suddenly increased quantities due to unforeseen circumstances. In all three types of trade remedy inquiry, it is crucial to specify what the imported product is. In...

Duty to act personally As a matter of principle, the basic rule is that a trustee must act in person because the settlor personally selected that individual for their specific skill or insight into the beneficiaries, and their affairs. The Trustee Delegation Act 1999 ( TDA 1999) allows trustees, in defined situations, to delegate on an individual basis. The Trustee Act 2000 ( Tr A 2000) outlines the trustees’ default powers of collective delegation where the trust deed does not confer broader express powers. In essence, trustees may pass on most administrative tasks, but not dispositive powers. Agents, nominees and custodians Under the Tr A 2000, the management of trust assets may now be entrusted to others, and trustees can appoint specified persons to serve as nominees for the trust. Collective delegation Tr A 2000, Pt IV (ss 11–27) provides for trustees to delegate...

How do I file documents at court? In court procedure, “filing” has a particular meaning. Under CPR 2.3(1), it is “delivering a document or information, by post or otherwise, to the court office”. The method you use can differ depending on the court dealing with the claim. You can file documents in several ways: In electronic form, including: using CE- File electronic working (under CPR PD 5C), which is mandatory in some courts-see: Electronic filing using CE- File by email-see: Electronic filing using email through an online claims service-where a claim starts or continues online, filing will usually be via that service. For details, see Practice Note: Online dispute resolution and the digital justice system- Online County Court services for money claims In...

1. What is the applicable legislation? The main legislation applicable to foreign investment comprises Kuwait Direct Investment Promotion Authority Law 116/2013 ( FDI Law 2013) together with Ministerial Decision 502/2014 issuing the Executive Regulations to implement Law 116/2013 on promoting direct investment in the State of Kuwait. Beyond these core FDI instruments, several other enactments may apply depending on how the investment is structured. Chief among these are the Companies Law 1/2016, the Capital Markets Authority Law 7/2010, and the Commercial Agencies Law 13/2016, alongside their respective executive regulations. In broad terms, Kuwait’s FDI framework is still relatively undeveloped. The system largely follows a traditional model for supervising foreign investment, concentrating on prohibiting non-nationals from conducting or funding certain activities, or on imposing heightened regulatory obligations on overseas investors. A comprehensive FDI screening mechanism, of the type found in many EU...

Practice Note This Practice Note provides an eligibility matrix outlining the criteria for settlement-also referred to as indefinite leave to remain ( ILR)-for partners or parents under the Immigration Rules, Appendix Settlement Family Life (the ten-year route to settlement). This Appendix was introduced into the Immigration Rules on 20 June 2022 as part of the Home Office initiative to streamline and simplify those Rules. Appendix FM to the Immigration Rules still sets out the provisions for limited leave for partners and parents on the five and ten-year routes, and the rules for settlement via the five-year route. The Practice Note also considers the terms governing settlement for dependent children within the Appendix itself. Alongside reorganising the relevant Rules into a simplified structure and layout, the Appendix contains several policy shifts from the previous ten-year route settlement provisions for partner applicants in Appendix FM,...

This Tracker This Tracker collates sample decisions that illuminate factors to weigh when considering whether to order alternative service on a defendant/respondent outside the jurisdiction. Please note that the service rules in Part 6 were extensively revised in 2008; earlier authorities may not reflect the current position and are therefore excluded. For examples relating to service within England and Wales, see Practice Note: Alternative service-illustrative decisions. This Tracker does not set out the core principles and should be read alongside the following Practice Notes: Alternative service-cross border considerations Alternative service-principles Alternative service-types of alternative service Serving court documents on persons unknown Alternative service-making an application For guidance on service in cross‑border matters, see Practice Note: Cross-border service-a guide for dispute resolution practitioners. That Practice Note refers to the following conventions: Hague Service Convention-for a copy of the...

Different examples of alternative service CPR PD 6A, para 9.3, lists various illustrations of alternative service. In the last few years, courts have adopted a broad array of such orders, reflecting growing dependence on technology; judges have permitted service via tools like airdrop, data rooms and social media channels in practice. These routes have also proved effective where unknown defendants are concerned. At times, one alternative method must be paired with another; for instance, an order permitting airdrop has stipulated delivery by email. Despite the expansion of different techniques, the central purpose of service remains unchanged: to bring the documents squarely to the attention of the person to be served. In many situations, email will be the most fitting route to achieve that aim. That proliferation should not distract from the fundamental objective of service, namely alerting the party to the...

Reform of anti-social behaviour powers (2014) The Anti-social Behaviour, Crime and Policing Act 2014 ( ABCPA 2014) overhauled the measures for tackling anti-social behaviour ( ASB), seeking to bring remedies together and make their use simpler and more effective. In July 2014, the government released fresh statutory guidance, ‘ Reform of anti-social behaviour powers: statutory guidance for frontline professionals’. That guidance was refreshed in August 2019 and again in January 2021 to incorporate the Sentencing Code, introduced by the Sentencing Act 2020 ( SA 2020), which repealed and replaced ABCPA 2014, Pt 2, and it has been updated regularly since. The opening section of the statutory guidance prioritises victims, placing them at the heart of the response to ASB. Across the document there is a strong focus on ensuring the powers are deployed properly and in proportion to the particular conduct creating harm or...

This Practice Note sets out guidance on acting as a guardian for a missing person under the Guardianship ( Missing Persons) Act 2017 ( G( MP) A 2017). It explains guardians’ powers and obligations, how supervision by the Office of the Public Guardian ( OPG) operates, and practical first steps on appointment. For advice on when it is appropriate to seek the appointment of a guardian under the G( MP) A 2017, and the procedure for issuing a claim, see Practice Note: Making an application to appoint a guardian to manage the property and financial affairs of a missing person. For guidance on changing, ending or renewing a guardianship order, see Practice Note: Changing, ending or renewing a guardianship for a missing person. Duties of the guardian A guardian must comply with duties set by their guardianship order, the G( MP) A 2017, and any...

The concept of ‘damage’ in the insurance context ‘ Damage’ is pivotal in defining the extent of cover offered across many forms of insurance. Typical policy classes where recovery depends on establishing property damage include: marine cargo insurance construction all risks ( CAR) cover household and commercial property insurance business interruption insurance, particularly when paired with a traditional property policy sue and labour or investigation expense cover under certain property policies liability policies responding to the insured’s legal liability for physical damage to a third party’s property The exact sense of ‘damage’ can shift, and it is always shaped by the context in which the word appears. There is no all‑purpose definition that applies in every case; as ever, the term must be construed by reference to the specific insurance policy in which it features. A policy may or may not set out a bespoke definition, or, failing that, offer other...

Practice Note This Practice Note offers practical guidance on the current border controls between the United Kingdom and the European Union, along with the changes scheduled to commence on 1 January 2022. It covers customs declarations, the payment of customs duty and VAT, and sanitary and phytosanitary checks. Introduction In November 2021, the UK released its updated border operating model, explaining how the UK border functions in relation to the EU. The model was originally brought in on 1 January 2021 following the UK’s departure from the EU customs union. From that date, certain border controls were introduced. These were phased in to allow time to build and prepare the necessary infrastructure to support those controls. In December 2021, the UK further updated the border operating model to temporarily prolong staged customs controls for goods moving from the island of Ireland into Great Britain. This interim step was taken...

People incur liabilities-arising from contracts, covenants, debts and duties-and, in broad terms, these do not lapse on death but can be pursued against the estate. Even if the personal representatives ( PRs) did not join the original arrangements, they ought to appreciate potential exposure to avoid litigation ( Hambly v Trott (1776) 1 Cowp 371). The consequences of this survival turn on the nature of the obligation. Personal contracts Ordinarily, a contract is not dissolved by a party’s death. However, for contracts of a personal character, the rule is displaced unless there was a pre-death breach. Thus, an employment contract ends on the death of either employer or employee, and a commission for creative work ceases on the artist’s or author’s death. Although the contract may come to an end, any earned but unpaid remuneration due to the testator endures and the PR may bring...

The legal costs position in probate claims The cost landscape in probate disputes is frequently misconstrued. This Practice Note addresses: the costs position in proceedings challenging the validity of a Will, and applications under the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975) The starting point-the general rule A widespread myth is that the estate routinely meets the litigation costs. That is wrong. CPR 44.2 governs both probate proceedings and I( PFD) A 1975 claims. The usual rule is that costs follow the event. A losing party will ordinarily be ordered to pay some or all of the successful party’s costs ( CPR 44.2(2)), subject to the court’s discretion. The court may exercise that discretion by assessing conduct. Conduct ( CPR 44.5) covers behaviour before and during the claim, including the extent of compliance with any...

The nature of disputes as to lifetime dispositions Where an estate proves to be less than expected, personal representatives ( PRs) and beneficiaries frequently raise questions and concerns about transactions the deceased undertook while alive. These may encompass outright gifts, asset disposals apparently at an undervalue, loans on favourable terms, sole assets placed into joint names, and deathbed gifts. If an attorney or deputy managed the deceased’s affairs, enquiries may need to focus on their conduct as well. There are several grounds on which a lifetime disposition can be contested. Allegations may include: the deceased lacked capacity (including potential abuse by an attorney or deputy) the deceased was subjected to undue influence, and the criteria for a valid deathbed gift (donatio mortis causa) were not satisfied The test for capacity to make lifetime gifts and the burden of proof The common law test for mental capacity to make a...

Personal representatives’ duties Under the Administration of Estates Act 1925 ( AEA 1925), personal representatives ( PRs) are required to: gather in and realise the deceased’s estate; and administer it in accordance with the law. The court may oblige PRs to produce an inventory of the estate and full accounts of their administration. They should be cautious about resisting beneficiaries’ requests for an account, or risk substantial costs being ordered against them. See News Analyses: Holding personal representatives to account-discharging an executor’s cardinal duty ( Ali v Taj [2020] EWHC 213 ( Fam)) and Indemnity costs following failed appeal against order for account and inventory ( Ali v Taj). PRs also have a duty to settle the deceased’s debts with due diligence, taking into account the estate assets properly available for that purpose. They should also consider any obligations owed to potential...

Section 55(1)(xi) of the Administration of Estates Act 1925 ( AEA 1925) defines ‘personal representative’ as: The expression covers the executor—whether originally appointed or by representation—or the current administrator of a deceased person. For the purpose of liability to death duties, it embraces anyone who, without the authority of the personal representatives or the court, takes possession of or interferes with the deceased’s property; and ‘executor’ further extends to a person treated as appointed executor in relation to settled land. An executor is an individual named in a valid Will or codicil to manage the testator’s estate and give effect to the Will’s provisions. See also Practice Note: Private Client England & Wales glossary— Personal representative. Where the deceased died intestate, an administrator may obtain a grant of letters of administration. If there is a Will but no effective appointment of...

Testator’s relationship to beneficiary Most will‑makers leave gifts in their Wills to beneficiaries named expressly, described by their relationship, or-preferably-in both ways. On occasion a legacy is directed to someone identified by their role or position (eg, my executor, my gardener). There are a number of general principles relevant to describing a beneficiary by relationship: As a general rule, such a description points only to relatives by blood (including those of the half‑blood) and excludes persons connected by marriage or by descent; thus ‘my niece’ would ordinarily be read as the daughter of one of the testator’s own siblings, rather than the child of a sibling of the testator’s spouse, subject to the next point Where the context or surrounding circumstances permit, the description may extend to persons related solely by affinity-for example, decided cases indicate: a nephew of the testator’s wife qualified as a...

This Practice Note explores the role of the Permanent Court of Arbitration ( PCA) as an appointing authority and, by default, as a designating authority in international arbitration, as well as its other administrative functions, including registry support, in cases not conducted under the institution’s own arbitration rules. For guidance on arbitration proceedings pursuant to the PCA Arbitration Rules, see: PCA arbitration-overview. History of the PCA and its institutions Before examining the PCA’s present, practical contribution to resolving international disputes, it is useful to consider aspects of its background. The PCA originated in the late 1880s, a turbulent period marked by mounting international frictions and advances in weaponry, when recourse to armed force was widely regarded as the principal method for states to pursue objectives and settle disputes ( S Rosenne, The Hague Peace Conferences of 1899 and 1907 and...