Legal Practice Notes

When weighing up whether, and in what way, to pursue a claim for judicial review, your opening task is to assess if that procedure is the suitable mechanism for resolving the issues presented by the matter before you. For additional help, see Practice Note: Judicial review—what it is and when it can be used. Time limits If judicial review is the route chosen, the next step will typically be to confirm there is still time to commence proceedings. Under CPR 54.5, claims for judicial review (apart from the three exceptions referred to below) must be issued promptly and, in any event, within three months of the date on which the grounds first arose. Promptness is an overriding requirement, and you should not assume a claim is in time merely because it is brought within three months. Accordingly, once the basis for the challenge has...

Introduction The strand of domestic law that originally arose from EU obligations and was captured by the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) as retained EU law ( REUL) is, from 2024, referred to as ‘assimilated law’. This change follows the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023). The new label signals notable shifts in the domestic standing and handling of assimilated law. Its objective is to advance the process of bringing former EU rules into the UK’s legal system and to support their reform... Reminder: what was retained EU law ( REUL)? To understand the move from REUL to assimilated law, it is useful to revisit REUL, which was established by EU( W) A 2018. For background on EU( W) A 2018, see Practice Note: Brexit—key legislation explained. After the Brexit...

Purpose A notices clause is frequently inserted into a contract to provide both sides with certainty and transparency around formal communications and the sending and receipt of notices between the parties to the agreement, including how they are given and received. Where no such clause appears, default statutory rules may step in (see Statutory provisions below). In the Court of Appeal in Khan v D’ Aubigny, Nugee LJ observed that a notice can be a document that imparts information as well as one that invokes or exercises a right. It is also commonly taken to mean a written notice bearing a degree of formality, though no fixed wording or prescribed format is demanded. Observing the requirements of a notices clause will often be critical across a variety of contractual contexts. By way of illustration, it typically matters when prolonging (or stopping the...

Stop Press On 24 February 2025, the principal provisions of the Public Procurement Act 2023 ( PA 2023) take effect. We are in the process of reviewing and updating our materials. Please note that procurements launched on or after 24 February must be conducted under PA 2023, while those initiated under the previous regime—the Public Contracts Regulations 2015 ( PCR 2015), the Utilities Contracts Regulations 2016, the Concession Regulations 2016, and the Defence and Security Public Contracts Regulations 2011—must continue to be tendered and administered in line with that legislation. For information, see Practice Note: Key Implications of the Procurement Act 2023 for Construction Lawyers. Brexit impact—public procurement The UK public procurement framework originates in EU procurement law and is therefore affected by the UK’s withdrawal from the EU. For general updates on the process and preparations for Brexit, see Practice Note: Brexit timeline. For further...

Scope of Practice Note This Practice Note addressing breach of contract explores what can constitute a contractual breach, and the judicial approach to assessing it by carefully construing the parties’ obligations—embracing both the ‘principle of futility’ and the ‘prevention principle’. It also sets out, in particular, the available responses to breach, namely an express contractual power to terminate for breach, or termination at common law for repudiatory breach, together with contractual damages and any various statutory constraints upon the remedies and liabilities arising from breach of contract. Note: a breach of contract may (though not invariably) lead to the agreement being terminated or brought to an end. Yet there are numerous other mechanisms by which a contract may end besides breach, and other circumstances in which a contract can be treated as void or rescinded. For guidance on these topics, see the...

General Throughout the duration of an agreement (and sometimes afterwards), one or more of the parties may wish to notify third parties about particular matters relating to the existence of the agreement, its subject matter, or developments arising from the operation of the agreement. The kind of information envisaged is that typically found in public announcements or press releases issued by one or more of the parties (eg to brief investors, prospective investors, the media, potential customers, or regulatory authorities). Such announcements are usually distinct from information generated through the performance of the agreement itself (eg in a consultancy arrangement, the consultant might produce routine reports on the tasks undertaken and supply that information to its client and, in some cases, to third parties). Nevertheless, the parties will not wish to permit each other to disclose information to third parties without restraint and will...

If a national court or tribunal in an EU Member State considers the meaning of a point of EU law unclear for a live dispute, it may—and in certain instances must—seek a preliminary ruling from the Court of Justice or the General Court. This Practice Note sets out the characteristics of the preliminary ruling mechanism together with: the scope and aims of the mechanism the situations in which a court or tribunal may, or is obliged to, submit a preliminary reference the proper moment to lodge the request for a preliminary ruling what is meant by ‘national court’ and ‘national tribunal’ for these purposes the method for making a request for a preliminary ruling, and the phases of a preliminary reference Background reading and statistics on preliminary references can be found in the annual reports of the Court of...

This Practice Note examines the closed material procedure ( CMP) under CPR 82, by which the state may present material sensitive to national security to a judge without revealing it to opposing parties. It further explains how to apply to withhold such national security sensitive material pursuant to CPR 82.13. The closed material procedure ( CMP)—evolution and rationale The state has long protected matters touching national security by asserting public interest immunity ( PII), shielding related information and documents—see Practice Note: Public interest immunity. Where a PII claim succeeded, national security-sensitive material remained concealed, as the documents were withheld from everyone and excluded entirely from the issues before the court, having no influence on the dispute. Yet the state could not rely on them either, because the PII certificate kept them out of the case. If, on the other hand, a PII claim failed, the...

Costs of judicial review proceedings The issue of who bears the expense of court proceedings, and the potential size of that liability, will inevitably be central when deciding whether to issue a claim and, likewise, whether and in what manner to resist one. As a starting point, the costs of judicial review are within the court’s discretion, pursuant to section 51(1)–(3) of the Senior Courts Act 1981 ( SCA 1981). That overarching position is shaped by the Civil Procedure Rules, relevant authority, and the specific facts and circumstances of the case at hand. Customarily (though not invariably) costs follow the event; in other words, the successful party will ordinarily recover its costs from the unsuccessful party. The costs in question are those ‘of and incidental to’ the proceedings. In most judicial review claims, the defendant is the public authority whose decision, act, or...

This Practice Note sets out the particular instances where legislation demands a contract to be in writing, covering assignments, contracts for the sale of land, equitable mortgages, assents, share transfers, transfers of intellectual property rights, and guarantees... When a written contract is beneficial or a necessity Contracts can come into being in three ways: orally, by conduct, or ‘under hand’ (in writing). For further detail on formation and interpretation, see: Formation and interpretation—overview. Simple contracts arise in ‘simple form’, whereas deeds must be executed in ‘solemn form’. See Practice Notes: Deeds and Executing documents—deeds and simple contracts. There are situations where writing is either required by law or necessary to meet registration rules. Statute requires contracts to be made or evidenced in writing for: assignments contracts for the sale or other dispositions of an interest in land (as distinct from the actual...

This practical guidance concerns the regime preceding the Procurement Act 2023. It provides direction pertinent to public procurement processes started before PA 2023 took effect on 24 February 2025. It applies to procurements launched before the Act’s commencement. Any in-scope procurements initiated on or after that date fall under PA 2023. By virtue of the Act’s transitional and savings measures, the earlier procurement frameworks remain in force so far as required for contracting authorities to finalise and administer procurements begun prior to commencement (i.e. ongoing procurements). This Practice Note should be read in that light. For background reading, consult Practice Note: Introduction to the Procurement Act 2023— PA 2023. Additional practical material on PA 2023 appears under a separate subtopic, see: Procurement Act 2023—overview. That subtopic includes the following Practice Note: Challenging a public procurement award—time limits— PA 2023. What is the scope for...

This Practice Note explores how to unlock emotional intelligence ( EI) within an in-house legal team to build self-awareness, motivation, empathy and leadership success. It centres on the essentials of leadership, strengthening social skills, and drawing on both the team’s shared and individual strengths. Why does emotional intelligence matter? There is a growing body of evidence that leaders with higher EI are more likely to thrive. Although qualities that are simpler to measure (such as intelligence quotient— IQ) can shape early career outcomes, you are more likely to excel as a leader if you can inspire and influence people around you. In a 1998 review of 181 competency models, Daniel Goleman reported that as many as 67% of the abilities regarded as crucial for managers’ effective performance were emotional (interpersonal) competencies. Common EI-related reasons executives’ careers stall include: failing to relate well to others being...

ARCHIVED This Practice Note is archived and not maintained. It is designed to outline the principal changes introduced by the recast of Brussels I and to describe the transitional arrangements so you can decide whether the new provisions apply to the matter you are handling. It was produced in January 2015 and will not be updated. The links in Related Documents are to maintained documents and give the up to date position. Transitional arrangements Under art 66, Brussels I (recast) applies only where the relevant events occur on or after 10 January 2015. Those events are: legal proceedings have been commenced authentic documents have been prepared or registered court settlements have been approved or concluded Warning Art 80 states that Brussels I (recast) repeals Brussels I. However, art 66 makes clear that, despite that provision, Brussels I continues to apply to judgments in...

This Practice Note outlines the corporate criminal offence of failing to prevent bribery under section 7 of the Bribery Act 2010 ( BA 2010). It was the first economic crime offence to attach culpability to a company’s failure to stop an offence carried out on its behalf. See Practice Note: Corporate criminal liability. For background on the evolution of corporate criminal liability, see Practice Note: Corporate criminal liability reform—tracker. Corporate criminal liability for bribery—section 7 of the Bribery Act 2010 The failing to prevent bribery offence applies only to relevant commercial organisations ( RCOs), not to individuals. BA 2010 defines RCOs as: bodies incorporated, or partnerships formed, under the law of any part of the UK, that conduct business anywhere, i.e. within the UK or abroad bodies incorporated, or partnerships formed, anywhere that carry on any business in the UK Business includes a trade or...

ARCHIVED: This Practice Note has been archived and is not maintained. For the latest Brexit News Analysis, see: News Analysis— Brexit collection. Public Law Brexit Legal Updates—2019 Q2 Lexis®PSL Public Law has issued news alerts and updates across varied matters linked to the effects of Brexit, presented in the tables below. 2 August 2019 Referendums ( Scotland) Bill—‘interesting, but not decisive’. On 28 May 2019, the Scottish government introduced a Bill establishing the legal basis for referendums within the Scottish Parliament’s competence. It covers all referendums, yet the government’s declared aim is to hold another Scottish independence vote before the next parliamentary session starts in 2021. In the meantime, it is looking for the Bill to be enacted by year-end. Professor Tom Mullen of the University of Glasgow discusses the Bill and how likely it is to result in a second...

ARCHIVED: This Practice Note is archived and no longer maintained. It outlines the legal consequences for Scotland arising from the UK’s departure from the EU. Notably, these implications stem from the United Kingdom’s devolution arrangements, which allocate legislative and executive authority to the Scottish Parliament and the Scottish Government under the Scotland Act 1998 ( SA 1998), subsequently and progressively expanded—principally to increase legislative and taxation powers—by the Scotland Act 2012 ( SA 2012) and the Scotland Act 2016 ( SA 2016) (collectively, the Scotland Acts). For additional guidance on Brexit, see: Scotland collection. Scotland's constitutional arrangements The starting point remains that Scotland’s status within what is now the United Kingdom of Great Britain and Northern Ireland finds its constitutional basis in the Act of Union between Scotland and England. Although devolution has re-ordered aspects of internal governance, the UK’s character as a single and...

STOP PRESS From 24 February 2025, the core provisions of the Procurement Act 2023 ( PA 2023) have come into effect. Any procurement launched on or after that date must follow PA 2023, whereas those started under the prior regime must continue to be run and overseen under that framework. Earlier legislation includes: Public Contracts Regulations 2015 Utilities Contracts Regulations 2016 Concession Contracts Regulations 2016 Defence and Security Public Contracts Regulations 2011 The Cabinet Office has also refreshed its standard contract document collections, templates and guidance for the government’s Model Services Contract, Mid- Tier Contract and Short Form Contract. These updated materials were released to coincide with the PA 2023 ‘go-live’ on 24 February 2025. This Practice Note will be revised shortly to reflect these changes. In the meantime, see News Analysis: Procurement Act 2023 ‘go live’—what happens next?, and...

STOP PRESS: From 24 February 2025, the core provisions of the Procurement Act 2023 ( PA 2023) apply. Any procurement launched on or after that date must proceed under PA 2023, while procedures begun under earlier regimes must continue to be conducted and managed in line with those rules. See Practice Note: Introduction to the Procurement Act 2023— PA 2023. Public Contracts Regulations 2015 ( PCR 2015) Utilities Contracts Regulations 2016 Concession Regulations 2016 Defence and Security Public Contracts Regulations 2011 PCR 2015 as assimilated law PCR 2015 are EU-derived domestic legislation and therefore form assimilated law under sections 2 and 6 of the European Union ( Withdrawal) Act 2018. For practical guidance on the status and interpretation of assimilated law, see Practice Note: Assimilated law. Distinction between selection and award criteria This Practice Note focuses on award criteria and the various...

What is the best value duty? The best value duty ( BVD) obliges a local government organisation to show that it has arrangements to secure continuous improvement in the way it exercises its functions, in other words, how it delivers its work. In practice, this typically covers how the authority manages core responsibilities such as: balancing its budget providing statutory services, including adult social care and children’s services The BVD was created by the Local Government Act 1999 ( LGA 1999). That Act remains the governing legislation, though it has been substantially amended, particularly by the Local Government and Public Involvement in Health Act 2007 ( LGPIHA 2007). Much of the detail on what BVD is and how it should be applied in practice is set out not in the LGA 1999 itself but in statutory guidance, which is issued from time to time under...

This practical guidance concerns the Procurement Act 2023 regime. From 24 February 2025, the core provisions of the Procurement Act 2023 ( PA 2023) take effect. Competitions launched on or after that date must, where relevant, follow PA 2023, while those started under the earlier framework—the Public Contracts Regulations 2015, SI 2015/102, the Utilities Contracts Regulations 2016, SI 2016/274, the Concession Contracts Regulations 2016, SI 2016/273, and the Defence and Security Public Contracts Regulations 2011, SI 2011/1848—must continue to be run and administered in line with that regime. This guidance concentrates on public procurement within PA 2023. For context on the former system, see Practice Note: Introduction to public contracts procurement. For practical notes on automatic suspension under the former legislation, see Practice Note: Automatic suspension—pre- PA 2023. Automatic suspension PA 2023, which applies to the letting of public contracts above the relevant...