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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
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 (TrA 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
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 different types and their
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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This Practice Note addresses the United Nations-supported Principles for Responsible Investment and considers sector guidance and recommended practical actions for private equity houses to embed environmental, social and governance ( ESG) considerations within private equity vehicles and their portfolio businesses. Overview of tools and resources Numerous industry and sector-focused organisations (including development finance institutions ( DFIs) and non-governmental organisations ( NGOs)) provide publicly available tools and resources to assist private equity firms with integrating ESG factors into their investment decisions and operations. The principal bodies and their tools and resources include: Principles for Responsible Investment ( PRI): Supplies guides and case studies on ESG integration. ( Resource/tool: PRI Data Portal) Sustainability Accounting Standards Board ( SASB): Provides sector-specific ESG standards for financial materiality. ( Resource/tool: SASB Materiality Finder) Global Reporting Initiative ( GRI): Sets out a framework for...
This Practice Note explains the prosecutions policy of the Health and Safety Executive ( HSE) in England, Wales and Scotland. In England and Wales, HSE may bring criminal proceedings for breaches of health and safety law; it determines whether a case should be taken and brings prosecutions before the criminal courts. While the same policy governs Scotland, charging decisions rest with the Crown Office and Procurator Fiscal Service ( COPFS), with HSE submitting recommendations to COPFS in accordance with the enforcement approach set out in this Practice Note. For guidance on enforcement of health and safety contraventions in Scotland, see Practice Notes: Health and safety investigations in Scotland and Prosecution process for health and safety cases in Scotland. For further material on duties created by health and safety law, methods of enforcement, prosecution of contraventions, and potential sentences on conviction, consult the Health and safety...
Guarantees In banking transactions, guarantees are commonly employed as security for a liability. For further information on the characteristics of guarantees, please see the Practice Note: Guarantees......
A limited partnership can be brought to an end by its: dissolution insolvency (see Practice Note: Ending a limited partnership—what is dissolution?) This Practice Note considers the termination of a limited partnership, including a private fund limited partnership ( PFLP), by dissolution where the court orders that outcome. A significant body of partnership law under the Partnership Act 1890 ( PA 1890) applies equally to limited partnerships and is relied on throughout this note. For other means by which a limited partnership might be dissolved, refer to Practice Note: Ending a limited partnership—dissolution otherwise than by the court. From 6 April 2017, the Limited Partnerships Act 1907 ( LPA 1907) was revised by the Legislative Reform ( Private Fund Limited Partnerships) Order 2017 ( LRO), SI 2017/514. The LRO was initially issued in January 2017 by HM Treasury, together with an explanatory document. It followed a...
ARCHIVED: An archived review from June 2013, undertaken by Airmic—a members’ association that supports individuals accountable for risk management and insurance within their own organisations—was produced with help from The Chartered Governance Institute ( CGI). It examines risk reporting across a selection of FTSE 350 companies and offers insights into the importance and advantages of comprehensive, detailed risk disclosure......
This Practice Note examines general partnerships established under the Partnership Act 1890. It sets out the key statutes and case law that shape the legal framework for partnerships. It also explains how to assess whether an individual is a partner, when partners may properly be regarded as employees or workers, the extent of a partner’s authority, partners’ liability for the firm’s debts and obligations, and the treatment of partnership property... Sources of partnership law The principal source of law for a general partnership governed by English law (as distinct from a limited liability partnership, a limited partnership, or a partnership incorporated under Scottish law) is the Partnership Act 1890 ( PA 1890), which has remained largely unchanged for more than a century. However, it is not a comprehensive code: it expressly preserves the rules of equity and common law applicable to...
ARCHIVED: This archived Market Standards trend report gives an update on market practice for the payment of dividends across the FTSE 350 in 2019 This archived Market Standards trend report, Dividends 2019, provides an overview of how FTSE 350 companies approached dividend payments in 2019. Featuring insights and expert commentary from Martin Webster, Partner at Pinsent Masons LLP, Jonathan Beastall, Senior Adviser at Pinsent Masons LLP, and the Investment Association, the analysis reviews practice across the index. The scope encompasses all FTSE 350 companies with a financial year ending between 1 July 2017 and 30 June 2018, which held their annual general meeting ( AGM) between 9 November 2017 and 10 December 2018 (the Research Period). The......
Scope of this Practice Note The core purpose of the Financial Services and Markets Act 2000 ( FSMA 2000) was to create and confer powers on the then Financial Services Authority ( FSA), following the government’s decision to introduce a single regulator for financial services in the UK. It serves as an overarching framework for financial services legislation and regulation within the UK. FSMA 2000 took effect on 1 December 2001, at which point the FSA became the sole regulator of the UK financial services industry. As part of government plans to reform the UK’s financial services regulatory architecture, the FSA was abolished on 1 April 2013 and its responsibilities were divided between two new bodies: the Prudential Regulation Authority ( PRA) and the Financial Conduct Authority ( FCA). FSMA 2000 remained the primary statute for the UK financial services industry, although the...
ARCHIVED : This Practice Note has been archived and is not maintained. The Financial Services Act 2012 ( FSA 2012) introduced a fresh UK regulatory structure from 1 April 2013, dissolving the Financial Services Authority and creating the Financial Conduct Authority ( FCA) alongside the Prudential Regulation Authority ( PRA). The FCA was set up as an independent conduct regulator with a strategic aim that the relevant markets operate effectively, and operational aims centred on market integrity, consumer protection and fostering effective competition. Among its responsibilities, the FCA assumed functions under Part VI of FSMA 2000 in its role as the UK listing authority. This Practice Note examines the effect of the FSA 2012 on listing-related functions under the FSMA 2000, Pt 6 rules. It records the legal position as at 1 April 2013 and includes links to sources, texts and related...
Practice Note This Practice Note outlines the principal legal issues to consider when a company extends a public offer of securities to investors in the United States of America ( US), including: the available exemptions from SEC registration the elements that shape disclosure other regulatory considerations influencing who may or will buy the offered securities, eg: the US Investment Company Act of 1940 the Employee Retirement Income Security Act of 1974 US tax rules the US Securities Exchange Act of 1934 the financial intermediaries permitted to offer the securities in the United States whether US investors expect to hold the non- US issuer’s securities directly or through American...
ARCHIVED This Practice Note is archived and not being updated. It summarises the implementation of the EU Prospectus Regulation and highlights its principal changes from the earlier Prospectus Directive. It records the position in law as at 21 July 2019 under the EU Prospectus Regulation, as amended by the SME Growth Markets Regulation ( EU) 2019/2115, and is kept solely for reference purposes. The Prospectus Regulation ( EU) 2017/1129 took effect on 20 July 2017, with all provisions applying across Member States from 21 July 2019. It sets out when a prospectus is required for an offer of securities to the public in the EU or for admission of securities to trading on an EU regulated market, and prescribes the content, approval and distribution requirements for that document. The regime aims to improve and streamline access to the capital markets in a...
Tracker overview This tracker outlines legislative and regulatory milestones from 2001 up to 31 January 2020, the date of Brexit, covering Regulation ( EU) 2017/1129 (referred to here as the EU Prospectus Regulation or Prospectus Regulation) and the repealed Directive 2003/71/ EC ( Prospectus Directive). It is organised into the following sections: Recent and future developments (2015 onwards) Review and further implementation of the Prospectus Directive (2009–2014) Implementation of the Prospectus Directive (2003–2009) Regulation ( EU) 2017/1129 was published in the Official Journal of the EU on 30 June 2017 and came into force in the EU on 20 July 2017. The bulk of its provisions have applied in the EU since 21 July 2019, with a small number taking effect earlier. For the stages of debate and agreement within the European legislative process on the Prospectus Regulation, see: EUR- Lex ( Procedure 2015/0268/ COD). Key...
The recast Markets in Financial Instruments Directive 2014/65/ EU ( Mi FID II) and the Markets in Financial Instruments Regulation ( EU) 600/2014 ( Mi FIR) entered into force on 2 July 2014, with the bulk of provisions across the Mi FID II framework taking effect on 3 January 2018. This Practice Note sets out the key provisions within the EU’s Mi FID II framework. For details on the UK’s post‑ Brexit Mi FID II changes—particularly the wholesale markets review and its partial implementation through the Financial Services and Markets Act 2023 ( FSMA 2023)—and connected Financial Conduct Authority consultations, see Practice Note: UK Mi FID II reforms. Background to Mi FID II and Mi FIR Mi FID I The Markets in Financial Instruments Directive 2004/39/ EC ( Mi FID I), which superseded the Investment Services Directive (93/22/ EEC), was adopted as a level 1, or...
Energy Savings Opportunity Scheme ( ESOS)—issues in corporate (private M& A) transactions The Energy Savings Opportunity Scheme ( ESOS) ESOS is an energy review and savings programme. It is compulsory for organisations that satisfy the qualification thresholds. It stems from the EU Energy Efficiency Directive 2012/27/ EU, art 8(4)–(6), which obliges EU Member States to ensure enterprises that are not small and medium-sized enterprises ( SMEs) undergo an energy audit at least once every four years. For further detail, see Practice Note: Energy Efficiency Directive 2012/27/ EU—snapshot [ Archived]. Articles 8(4)–(6) of the Energy Efficiency Directive have been given effect in the UK through the Energy Savings Opportunity Scheme Regulations 2014, SI 2014/1643 (the ESOS Regulations). The Energy Act 2023 provides powers to make the necessary ESOS changes post- Brexit, and the Energy Savings Opportunity Scheme ( Amendment) Regulations 2023, SI 2023/1182 introduced...
When is an indemnity needed? Where issues are revealed during the due diligence phase, such as contaminated land liabilities or specific environment, health and safety ( EHS) non-compliance, the purchaser may seek an environmental indemnity to be included in the asset purchase agreement ( APA) or secured in a stand-alone environmental deed. Refer to the following Precedents: Environmental indemnity for an asset purchase agreement Asbestos indemnity for when seller is in breach Checklist for environmental indemnity Once the principle of an environmental indemnity is accepted, lawyers and their clients should agree the scope before any drafting commences. Indemnities are tailored to the specific transaction. The list below highlights the key issues that ought to be considered. Indemnifying parties: The purchaser may want the seller’s parent company added as guarantor. Liability cap: Often set with advice from technical consultants. Note that clean-up liabilities could exceed the purchase price,...
Private and unlisted companies encounter distinctive challenges when rolling out employee share schemes. Chief concerns are the absence of a ready market for shares and the difficulty of valuing them. Businesses must also consider amendments to their Articles of Association and the knock-on effects for shareholders and external investors. This note sets out the essentials and shows how, with careful design and delivery, these obstacles can be overcome. Perceived barriers to share plans in private companies These include: losing control of the company no ready market for shares a lack of awareness of the tax benefits associated with HMRC tax‑favoured arrangements concerns about complexity and, therefore, the cost of establishing a plan With the right advice and planning, these hurdles can be managed. Why private companies use employee share plans The Finance Act 2014 gave a major impetus to employee ownership through the...
STOP PRESS: A sweeping overhaul of the UK listing framework came into force on 29 July 2024, removing the premium and standard listing segments and, in their place, creating a single listing class for equity shares issued by commercial companies. This commercial companies class is strongly disclosure-led and sits alongside other listing categories, including shell companies, secondary listing and closed ended investment fund categories, within the wider regime. A new UK Listing Rules sourcebook commenced to deliver and codify these reforms, and the former Listing Rules sourcebook was withdrawn in full. For more detail see Practice Note: Reform of the UK listing regime—fundamentals. This Practice Note describes the regime as it stood prior to 29 July 2024. A dividend is one form of distribution that a company may make to its members. Indeed, dividends are the most prevalent form of...
STOP PRESS: A major overhaul of the UK listing framework took effect on 29 July 2024, removing the premium and standard listing segments and introducing one unified category for equity shares issued by commercial companies, as part of a significant restructuring of the regime. This commercial companies category is strongly disclosure-led and sits beside other listing buckets, including the shell companies, secondary listing and closed ended investment fund categories too. A new UK Listing Rules sourcebook took legal effect to deliver these changes, while the preceding Listing Rules sourcebook was withdrawn. For more details, consult Practice Note: Reform of the UK listing regime—fundamentals. This Practice Note mirrors the regime as it stood before 29 July 2024, in practice. In addition, this Practice Note cites an earlier iteration of the UK Corporate Governance Code, rather than the current edition released on 22 January 2024 for...
This Practice Note sets out the employment matters to consider when establishing, operating and bringing to an end a corporate joint venture ( JV). It addresses the following: TUPE transfers Non- TUPE transfers Secondments The harmonisation of employment terms Collective agreements and trade union recognition Pension issues Immigration issues Formation of the joint venture entity Many employment aspects at the outset of a JV will be shaped by the JV’s underlying aims. Although a JV can be created through a variety of structures, from an employee perspective the central question is whether their duties can be regarded as moving from their current employer to the new JV vehicle under the Transfer of Undertakings ( Protection of Employment) Regulations 2006, SI 2006/246 ( TUPE 2006). For more detail, see Practice Note: Preliminary issues (joint...
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When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
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...
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 ...
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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