Legal Practice Notes

This Practice Note explores the role, function and significance of defined terms within an agreement context. It outlines those definitions most frequently found in documents relating to transactions, and considers the method that ought properly to be adopted when reviewing or preparing a contract that uses defined terminology. For wider guidance on boilerplate clauses generally, see Practice Note: The role of boilerplate. For general guidance on construing contracts, see Practice Note: Contract interpretation—rules of contract interpretation. The definitions and interpretation clause A common boilerplate provision is the definitions and interpretation clause, often treated as a standard component. It should gather every individual defined term contained in the agreement together with all provisions that govern the overall interpretation of the agreement and, where required, the meaning of particular expressions used in it as well. Typically, the defined terms and the...

This Practice Note examines how the 2005 Hague Convention on Choice of Court Agreements—which provides regimes for allocating court jurisdiction and for the recognition and enforcement of judgments—will operate in the UK after the end of the Brexit implementation period, viewed from the perspectives of both the UK and the EU Member States. The Convention applies solely to exclusive choice of court agreements. Definitions This Practice Note uses the following definitions: Hague Convention— Convention on Choice of Court Agreements concluded on 30 June 2005 at The Hague ECA 1972— European Communities Act 1972 EU( W) A 2018— European Union ( Withdrawal) Act 2018 EU( WA) A 2020— European Union ( Withdrawal Agreement) Act 2020 exit day—is defined in EU( W) A 2018, s 20 implementation period—is defined in EU( WA) A 2020, s 1. ‘...

Background to medical use claims Second (and later) medical use patent claims (called ‘second medical use claims’ below) are unique to the pharmaceutical/biotechnology sectors and serve to delineate an invention’s ambit by specifying a medical use. For a primer on these and other categories of patent claim, see Practice Note: Major types of patent claims. There are two distinct forms of second medical use claim, outlined in greater detail below. Making the medical use an explicit feature of a claim affects both its patentability and the breadth of protection. To place second medical use claims in context, it should be recognised that they originated under the earlier 1973 version of the European Patent Convention ( EPC 1973), which has since been superseded by the EPC 2000. The earliest second medical use claims allowed by the European Patent Office ( EPO) from the...

The Copyright, Designs and Patents Act 1988 ( CDPA 1988) states that the author of a work is the individual who brings it into being. The creator is not invariably the proprietor of a work, though, as a rule, they hold the initial copyright unless the work is produced in the course of employment (see below), when the employer takes it. Knowing who the author is matters across much of copyright law. For instance, the duration of protection typically runs by reference to the author’s lifetime; authors may assert moral rights; and protection might not subsist at all unless the author holds the requisite qualifying status. Identifying the owner of the copyright is also crucial; as a matter of prudence, title and ownership ought to be confirmed before acquiring or taking a licence of a work. Ownership is equally central in...

This Practice Note reviews the application of the Hague Convention on Choice of Court Agreements by contracting states to the convention. It sets out the parties to the convention, as well as those states that have signed the convention but have not yet ratified it. It also outlines how the convention operates for contracting states. For guidance on further elements of the convention, see the following Practice Notes: Hague Convention on Choice of Court Agreements (jurisdiction and enforcement)— Brexit considerations Hague Convention on Choice of Court Agreements—scope Hague Convention on Choice of Court Agreements—jurisdiction Hague Convention on Choice of Court Agreements—enforcement Definitions This Practice Note uses a number of definitions: Hague Convention on Choice of Court Agreements— HCCH Convention on Choice of Court Agreements concluded on 30 June 2005 at The Hague EU( W) A 2018— European Union (...

This Practice Note sets out practical guidance on how unincorporated charities execute documents. For details on execution by incorporated charities, refer to Practice Note: Execution formalities—incorporated charities. We offer a comprehensive, interactive collection that helps users identify and navigate the concepts and common issues in document execution, including deeds. Each stage includes practical guidance, precedent clauses and Q& As tailored to that stage. For further detail, see the Execution collection. Capacity Unincorporated charities lack a separate legal personality; consequently, the entity itself has no rights or duties and cannot own property in its own name. Property that appears to ‘belong’ to an unincorporated charity is vested in the organisation’s leading members, who act as trustees and hold it on trust for the remaining members. Accordingly, the individuals with authority to enter into arrangements and to execute documents are the trustees or members of the...

Trade mark infringement— UK Registration of a UK trade mark grants the proprietor the exclusive power to stop others using that sign, or a similar sign, without approval or consent. A trade mark proprietor may issue proceedings for infringement for unauthorised use of the mark, by bringing an action in respect of that use. For more detail, see Practice Note: Trade mark infringement— UK. To ensure other traders can compete openly and fairly in the market place, there are several defences and exceptions to infringement available. This Practice Note discusses the operation and application of the statutory defences and exceptions under section 11 of the Trade Marks Act 1994 ( TMA 1994), including: the defendant’s own use of a registered trade mark use of their own name and address use of indications about characteristics of goods and service or intended purpose use of an earlier right in a...

Practice Note This Practice Note is intended to guide the identification of the applicable law before the courts of England and Wales in relation to events that cause damage, where those events took place on or after 1 January 2021. Where a dispute raises a conflict of laws between different parts of the UK, or between the UK and Gibraltar, UK Rome II applies if the harmful event occurred on or after 11 January 2009. For occurrences falling outside these dates, the UK courts will apply a different applicable law regime, determined by the date of the event. For an overview of the various regimes and how they interrelate, see Practice Note: Applicable law regimes. This Practice Note refers to UK Rome II, Regulation ( EC) 864/2007. UK Rome II reproduces the full text and recitals of Regulation ( EC) 864/2007 (as...

Numerous businesses and public bodies, including HMRC, have faced exposure to or loss of confidential information, as well as other confidentiality failings, yet such events are not always widely publicised given the potential harm to an organisation’s reputation. Duties of confidence may arise by implication—for example, the duty of good faith (often called fidelity) inherent in employment contracts—be set out expressly, such as in a confidentiality agreement, or be imposed through regulation and statute, for instance the client confidentiality obligations on financial services and health professionals. A confidentiality breach can therefore infringe several overlapping legal duties. This Practice Note complements the related Practice Note, How to manage a personal data breach, which reflects guidance from the UK data protection regulator, the Information Commissioner’s Office, addressing loss of personal data within the data protection regime, which may, or may not, also be...

This Practice Note It explains how to assess whether the UK courts have authority to hear an IP dispute. It reviews the general landscape for conflicts about IP rights, and then identifies specific considerations for patents, trade marks, copyright and design rights. The emphasis is on the courts of England and Wales (often called the English courts for ease), while also addressing how cases are allocated across the different UK courts. For convenience, these are sometimes described as the English courts, yet the Note also considers how work is distributed between the various courts across the UK. Although IP protections operate on a national or regional territorial footing, the characteristics of the underlying subject matter (eg inventions, literary works, and the like) enable near‑instant cross‑border movement, particularly in the digital era. Therefore, deciding which court has jurisdiction can be a...

Defending a claim of copyright infringement In most copyright infringement cases, a defendant will first challenge the claimant’s position on copyright itself, contending either that no copyright exists in the work identified, or that any subsisting copyright is not owned by the claimant (and sometimes both). The next step is often to assert that, even assuming copyright does subsist, there has been no infringement. This may include arguing that the original work and the accused material lack sufficient similarity, or adducing evidence that the disputed work was created independently, i.e. that no copying occurred. Finally, there are specific statutory carve-outs to infringement, predominantly set out in the Copyright, Designs and Patents Act 1988 ( CDPA 1988). These are referred to as permitted acts. The range of permitted acts applying to copyright is extensive, with several also relevant to database right. Where other legal claims arise, such as...

This Practice Note It sets out what a smart legal contract (often called a smart contract) is, both as a technological tool and as a binding legal device, and summarises the Law Commission’s guidance to the UK government, which found that the existing UK legal framework can enable and underpin the use of smart legal contracts. It outlines the legal concepts relevant to contract formation, form, formalities and interpretation under UK law, and contrasts their conventional application with how, according to the Law Commission, they might apply to the principal categories of smart legal contract. The Practice Note covers: • What is a smart legal contract? • Distributed ledger technology ( DLT) • Enforceability under UK law • The formation of smart legal contracts • Agreement (including offer and acceptance) • Consideration • Certainty and completeness • Intention to create legal relations •...

This Practice Note explores when and for what reasons you ought to pursue settlement of disputes, and the implications of failing to try to settle when directed to do so. For direction on who should participate in settlement discussions, the form a settlement might take, how it should be recorded, and the means of enforcement, consult the materials in this subtopic, including the following Practice Notes: Settling disputes—who, confidentiality and subject to contract Settling disputes—settlement offers ( Calderbank, WPSAC and Part 36) Settling disputes—how to document a settlement Settling disputes—drafting the settlement agreement Resolving disputes concerning settlement agreements What is settlement? A settlement is the product of agreement between the disputing parties to compromise and/or conclude the litigation, or to resolve matters where no proceedings have yet started. It comes about when one party makes an offer that is accepted by the other or others. Not all parties to the...

This Practice Note condenses the law, guidance and practical approach to executing simple contracts and deeds. It highlights the main distinctions between deeds and simple contracts, pinpoints those transactions that must be effected by deed, and outlines the execution formalities for both. It also covers the need for signature, use of counterparts, dating, smart legal contracts, virtual execution and electronic signatures. We have created a comprehensive, interactive collection to help users recognise and navigate the concepts and recurring issues that arise when executing documents. Each section or phase provides practical guidance, precedent-style clauses and Q& As relevant to that stage. For further information, see: Execution collection. Creating contracts A contract is a binding agreement that confers rights and imposes obligations on two or more parties. There is extensive case law on contract principles which is not examined in detail here. Put simply, for a...

Practice Note: negative declarations This Practice Note examines negative declarations. It first addresses what a negative declaration entails, then the High Court’s jurisdiction to grant one. It next outlines the court’s approach, sets out the principles guiding the decision whether to grant such relief, and offers guidance on making an application for a negative declaration. What is a negative declaration? A declaration is, in essence, a formal statement issued by the court at a party’s request. This may concern the parties’ rights in a dispute, whether certain facts exist, or a rule of law. For general guidance on declarations, see Practice Note: Declaratory relief. A negative declaration is the declaratory remedy expressed in negative terms. It is an uncommon form of relief because it effectively flips the parties’ conventional positions. As noted by Lord Woolf in the Court of Appeal in Messier‑ Dowty Ltd v Sabena SA...

Practice Note This Practice Note examines how the English courts approach the meaning and effect of a jurisdiction agreement (also referred to as a choice of court agreement) under English common law. It sets out the elements required for a valid jurisdiction agreement and the courts’ general method for construing these provisions. Matters addressed include whether a dispute falls within the clause’s ambit and how the jurisdiction promise interacts with the wider contract, covering separability and the position where the contract is alleged to be void or voidable. The Note also considers the courts’ approach to jurisdiction agreements contained in related contracts, as well as how conflicting jurisdiction provisions are handled. In addition, it reviews the use of jurisdiction clauses in an underlying contract for the purposes of settlement disputes, and the effect of an English law clause where no...

This Practice Note considers exclusion and limitation of liability in business-to-business ( B2B) contracts. This Practice Note offers guidance on the common law and statutory controls that govern exclusion and limitation of liability clauses (also described as limitation of liability clauses, limitation clauses, exclusion of liability clauses, exclusion clauses and exemption clauses), including the Unfair Contract Terms Act 1977 ( UCTA 1977) and the Misrepresentation Act 1967 ( MA 1967). It identifies which provisions amount to exemption clauses and sets out three central matters to address when drafting them or assessing them in a dispute: incorporation construction statutory controls It also outlines the courts’ treatment of attempts to exclude or restrict liability for certain breaches (eg fundamental breach) and for different heads of loss (eg direct loss, indirect and consequential loss, loss of profits, loss of use and loss of data). It notes common...

This Practice Note This Practice Note offers practical guidance on correctly and properly executing simple contracts and deeds for Law of Property Act receivers ( LPA receivers) or fixed charge receivers. Appointing an LPA/fixed charge receiver is a remedy available to the chargee (ie the holder of security over property) and is the remedy of a chargee. LPA/fixed charge receivership is not an insolvency process and does not necessarily, of itself, mean the chargor (ie the person who granted the security) is insolvent. An LPA/fixed charge receiver must be a natural person (ie a company cannot be a receiver) but need not be an insolvency practitioner or hold any other particular qualification. Unlike a liquidator, administrator or trustee in bankruptcy, an LPA/fixed charge receiver does not take control of the company as a whole (and, for an individual, does not control the...

This Practice Note sets out practical steps for arranging the execution of a document by an individual who has an impairment or disability, or where the individual and their adviser do not share the same language. For overarching guidance on executing contracts and deeds, see the following Practice Notes: Deeds Executing documents—deeds and simple contracts We have also created a comprehensive, interactive collection to help users recognise and navigate key concepts and frequent issues in document execution. Each stage includes practical guidance, precedent clauses and Q& As tailored to that phase. For further details, see: Execution collection. Inability to read or comprehend documents in writing An impairment may prevent a signatory from reading a document themselves, for instance where they are partially sighted or blind. It may equally be that the signatory does not read or speak the language used in the...

This Practice Note sets out practical guidance on the correct execution of simple contracts and deeds by limited liability partnerships ( LLPs). See also Precedents: Execution clause—limited liability partnership—contract and Execution clause—limited liability partnership—deed. For commentary on establishing an LLP, see Practice Note: Forming a limited liability partnership. We have created a collection that serves as a comprehensive, interactive tool to help users pinpoint and navigate the concepts and common issues that arise when executing documents. Each stage or phase supplies practical guidance, precedent clauses and Q& As relevant to that part. For further details, see: Execution collection. The law Before 1 October 2009, the execution formalities applicable to LLPs were contained in the Companies Act 1985. From 1 October 2009, LLPs have been governed by the Companies Act 2006 ( CA 2006) by virtue of, and as modified by, the Limited Liability...