Legal Practice Notes

Termination—contractual and common law rights As commercial solicitors, we are commonly engaged to advise on setting up a commercial relationship. While we, much like family practitioners preparing pre-nuptial agreements, often consider the consequences of a relationship ending, only in more recent economic conditions are we more frequently asked how to unwind the relationship in the first place. It is vital to remember that a right to terminate may arise at common law (for example, for repudiatory breach) as well as under the contract’s express terms. Where an agreement is silent on termination, the courts will, in any dispute, apply common law principles. To minimise uncertainty, parties typically include clear contractual provisions dealing with termination. As a general rule, contractual termination rights are additional to, and not a substitute for, common law rights. In the absence of wording to the contrary, the default...

Scope of the General Product Safety Regulations 2005 The General Product Safety Regulations 2005, SI 2005/1803 ( GPSR 2005), set the legal framework to ensure consumer products are safe in Great Britain. They outline the conditions and responsibilities for placing consumer goods on the GB market. states that products introduced to the market or supplied by producers and distributors must be safe clarifies the meaning of a safe product imposes duties on producers and distributors consistent with marketing safe products establishes a presumption of conformity for items that meet UK national safety standards mandates and authorises enforcement authorities to take whatever action is necessary to protect consumers from unsafe products Separate rules apply to the placing on the market of consumer products in Northern Ireland and within the EU. For details on EU consumer protection law, see:...

For details of the duties on producers and distributors under the General Product Safety Regulations 2005, SI 2005/1803 ( GPSR 2005), refer to Practice Note: General Product Safety Regulations 2005— Offences. For information on prosecuting offences under GPSR 2005, SI 2005/1803, including the maximum sentences available on conviction, see Practice Note: Prosecution of product safety offences under the General Product Safety Regulations 2005. Notification requirements In England and Wales, where producers or distributors become aware that a product they have placed on the market or supplied to a consumer fails to meet the general safety requirement, they are obliged to notify the relevant enforcement authority of that information. They must also provide details of the steps they have taken to prevent risk to the consumer. The Office of Product Safety and Standards ( OPSS) guidance on the notification requirements contains a template...

Criminal sanctions under the Trade Marks Act 1994 ( TMA 1994) In some trade mark infringement scenarios—such as wilful misuse aimed at producing counterfeit goods—the trade mark owner, and from a public policy standpoint, may regard routine civil remedies as insufficient. In those situations, criminal sanctions under the Trade Marks Act 1994 ( TMA 1994) are available. These measures are most frequently directed at those dealing in counterfeits who apply false trade marks to replicate the products of leading manufacturers. Nevertheless, the TMA 1994 has a much broader scope, enabling criminal penalties for other types of unauthorised trade mark use, including offences where there is no requirement to prove dishonesty. Trade mark offending should be viewed within the wider framework of IP crime and may, in particular, intersect with copyright crime. For instance, creating a pirate film on DVD would be a...

The legal requirements of hallmarking Under the Hallmarking Act 1973 ( HA 1973), the sale of goods marketed as 'gold', 'silver', 'platinum' or 'palladium' is lawfully regulated. A hallmark comprises a set of symbols stamped on articles of these precious metals, confirming independent assessment by an Assay Office. It is a guarantee that the article complies with the law. This assures the piece meets statutory thresholds for precious metal content, called 'fineness'—the proportion of precious metal to alloy in the item, expressed in parts per thousand. Items claimed to be wholly or partly gold, silver, platinum or palladium must carry the correct hallmarks prior to supply or any offer to supply, before sale. Save for limited exemptions, goods without hallmarks must not be described as wholly or partly made from gold, silver, platinum or palladium. Premises where articles of gold, silver or platinum are made,...

This Practice Note considers good faith in commercial agreements It explores the meaning of good faith and the degree to which it features in commercial arrangements, whether as an express commitment or as a term implied by law, including in the sphere of relational contracts. It also addresses agreements to negotiate in good faith, how other jurisdictions approach a duty of good faith, the operation of Braganza-type duties within commercial contracts, and offers drafting pointers for clauses dealing with good faith provisions. The orthodox position taken by the English courts has been to refrain from implying a general duty of good faith into commercial agreements, stating that, if parties intend to create such an obligation, it must be articulated expressly ( Mid Essex Hospital Services). Nonetheless, the courts may in some situations recognise an implied duty of good faith, either by applying the...

Powers to adopt The Highways Act 1980 ( Hi A 1980) empowers highway authorities to take on new highways by agreement, imposes a duty on them to look after adopted highways at the public expense, and enables payments to be made to highway authorities for highway works and their upkeep, where the authority is content that such works will benefit the public. Section 38 agreement Adoption under Hi A 1980, s 38 is a well-used mechanism for delivering new highways that are maintainable at the public expense. A developer must build streets to an agreed specification, having obtained the highway authority’s technical approval for the designs. This occurs under a legally binding agreement between the developer and the highway authority made pursuant to Hi A 1980, s 38, referred to as a section 38 agreement. The section 38 agreement sets out the...

Need for specific additional enquiry where highway access is crucial Direct connection to the highway can be pivotal to a scheme’s viability. In Gooden v Northamptonshire CC, the local authority ( LA) answered enquiries asserting—incorrectly—that the relevant strip formed part of the highway and was maintainable at public expense. On the strength of that response, the developer purchased the site and secured planning consent for a residential scheme. Four months later, the LA wrote to the developer explaining that part of the land had not been adopted. He brought a claim, arguing he would not have proceeded with the purchase had the reply been accurate. The court rejected the claim, holding that it had to be shown the LA knew, or ought reasonably to have foreseen, the nature of the transaction the developer intended and the purpose for which he might rely on the...

Offences involving highway obstructions Several provisions of the Highways Act 1980 ( Hi A 1980) set out particular kinds of highway obstruction or nuisance arising from placing objects on, or the use of, the highway—for instance, skips located on the carriageway and the oversailing of cranes or other projections. Each is linked to a specific offence, which can be avoided where a licence is applied for and granted by the highway authority. See Practice Note: Highways obstructions—building works, scaffolding and skips. In addition, section 22 of the Road Traffic Act 1988 makes it an offence to leave a vehicle or trailer in such a position or condition that it endangers other persons using the highway. The Clean Neighbourhoods and Environment Act 2005 ( CNEA 2005) also introduces ‘nuisance parking offences’ relating to displaying vehicles for sale or carrying out vehicle repairs on a road...

Unlike maintained schools, academies and free schools receive their funding straight from the Department for Education ( Df E), rather than from or through the local authority for the area in which they are based. This central government money is managed on the Df E’s behalf by the Education and Skills Funding Agency ( ESFA). Note: there are no academies in Wales. While the Academies Act 2010 ( Ac A 2010) does extend to Wales, the sections allowing the establishment and financing of new academies apply solely in England......

Chairing meetings If the chairman of a local authority meeting (also known as the mayor or maer in a city or borough council without a directly elected mayor) is in attendance, they are required to take the chair. Where the chairman is absent from a full council meeting, the vice-chairman will preside or, if they too are not present, another councillor selected by those in attendance will take the chair. In these circumstances, a Cabinet member is not eligible to preside. For parish and community councils, the chairman or vice-chairman must chair the meeting and, if both are away, any councillor chosen by the members present may do so. At parish meetings where the parish has a separate council, the chairman of that council must preside or, if unavailable, the vice-chairman of that council. Where there is no separate parish council, the chairman of the...

ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note applies solely to England. There are no free schools in Wales. Although the Academies Act 2010 ( Ac A 2010) does extend to Wales, the provisions on creating and funding new free schools operate only in England. This category of independent school was introduced in 2010 as a new type. Free schools are technically defined as independent schools; however, the independence in question is from the local authority of the area in which they sit, not from the state itself. Free schools are funded and regulated by the Department for Education ( Df E). Free schools and academies In legal terms, free schools are academies created or operated under the Ac A 2010. A practical distinction is that academies commonly began, when first established, by replacing earlier maintained schools, usually in the same...

The constitutions of maintained schools This Practice Note sets out how governing bodies for maintained schools in England are formed and how their composition is fixed by reference to the instrument of government. It also outlines governors’ powers and responsibilities, as well as the processes for their appointment and removal. In Wales, governance operates under a regime closely aligned with that in England. Every maintained school in England, including each maintained nursery school, has a governing body that stands as a statutory corporation. The make-up of that governing body is prescribed by its instrument of government, which records, among other matters, the school’s name, its category (eg voluntary aided or community), and the number of each class of school governor who will constitute the governing body. Under the School Governance ( Constitution) ( England) Regulations 2012, SI 2012/1034, the instrument of government is drafted by the...

This Practice Note This Practice Note concerns the public’s legal entitlement to use vehicles, to ride a horse, or to drive animals along most highways. It outlines that the commonest ways of categorising highways are by the traffic allowed (for example, a footpath or bridleway) and by the maintaining authority (for example, a classified road or GLA road). It also provides an alphabetical list with descriptions of the principal highway types in England and Wales. The essential public right over a highway is for any person to pass and re‑pass along its length. On the majority of highways—though not every one—there is, in addition, a lawful right to use vehicular transport and/or to ride a horse and/or to drive animals from one place to another. The most usual classifications of highways into types are by permitted traffic and by maintenance authority. The...

This Practice Note discusses the common law on highway diversions It sets out that the essential feature is movement from A to B, rather than the specific parcel of land over which the right of way is believed to lie, and it also covers highway closure brought about by natural forces. It further explains that where a highway on or close to the coast is destroyed by incursions from the sea, the courts will not require the authority charged with its maintenance to reinstate it to a serviceable condition. While the common law acknowledges the force of the maxim ‘once a highway, always a highway’, there are, inevitably, some exceptions. In R v Secretary of State for the Environment, ex p Burrows; R v Secretary of State for the Environment, ex p Simms, Purchas LJ observed: ‘ At common law the rule was and...

This Practice Note This Practice Note sets out that determining a highway’s breadth is essentially a matter of fact. Under the common law, there must be evidence amounting to proof of the least width needed to accommodate the traffic entitled to use it. If such proof is absent, the Highways Act 1980 ( Hi A 1980) specifies minimum and maximum widths as defaults. The Note also outlines the various kinds of boundaries, explaining that there is frequently physical indication of a highway’s lateral limits, yet each instance turns on its own facts. It further notes that, under the Hi A 1980, highway authorities may widen a highway, or build fresh bridges or footbridges. Historically, the breadth of a highway seldom gave rise to dispute. The highway right was (and remains) a right to pass and re-pass; a right to travel from A to B......

At common law, highway ferries fall into two types, identified by the routes they take. One type operates between towns or to a specified island, while the more usual type links two named highways, each situated on opposite sides of a body of water. The Highways Act 1980 ( Hi A 1980) deliberately leaves ferries outside the statutory definition of a highway, yet the common law regards them as comparable to highways, carrying particular rights and obligations. What sets a ferry apart from other forms of highway is: a ferry is a franchise vested in an individual or a corporation the power to operate a ferry carries both privileges and duties the ability to use a ferry is qualified and limited A ferry as a franchise The general principle is that anyone with a boat may transport a passenger across a navigable river; however, that principle yields where such use of a...

This Practice Note describes the: the creation of new highways which, once properly built, are intended to be maintained at the public expense the adoption by a highway authority of an existing route, so that it becomes a highway maintainable at the public expense The legal mechanisms for creating a new highway are set out in Practice Note: Creation of highways without express agreement. The obligation to maintain a highway is a distinct issue. Often, an owner will be content to dedicate a road for public use, but will expect the local authority to take on its future upkeep; otherwise, the maintenance liability remains with the landowner. A way becomes a highway maintainable at the public expense in three principal ways: through a procedure started by the landowner through a procedure started by the highway authority by mutual...

This Practice Note provides guidance on jurisdiction in children proceedings, having regard to the implications of Brexit. It explains how jurisdiction is to be determined in children proceedings in the context of Brexit. It covers both the regime operating from 1 January 2021 and the arrangements that applied up to IP completion day (31 December 2020), including when transitional provisions apply. See: Jurisdiction on and after 1 January 2021 and Jurisdiction prior to IP completion day (31 December 2020) and where transitional provisions apply. It also outlines the procedure to follow when jurisdiction is in issue in children proceedings, and judicial guidance. This includes the President of the Family Division’s Guidance: Transfer of proceedings, issued on 21 January 2025, which replaces the April 2016 guidance on transfers under Article 15 of Council Regulation ( EC) No 2201/2003 of 27 November 2003...

Who makes the determination? Local authorities ( LAs) alone carry the duty to decide whether land constitutes contaminated land under Part IIA of the Environmental Protection Act 1990 ( EPA 1990). They may only pass this duty on in line with their statutory powers under section 101 of the Local Government Act 1972. When weighing up a potential determination, LAs can take into account information or guidance from the Environment Agency ( EA), Natural Resources Wales ( NRW), or another suitably qualified specialist. Even so, the final call rests with the LA. In practice, an officer acting under delegated authority, or a committee through a formal resolution, will usually make the determination. Whichever decision-maker is involved, they must ask the correct question: is the land contaminated land, or not? At that point, it is premature to consider the suitability of serving a...