Legal Practice Notes

Scenario: Although the team is grafting, demand keeps rising while resources are tighter than ever. The familiar edict from the business to deliver more with less has been issued, even as operational pressures intensify. Some lawyers could be nearing burnout, yet the room for change is narrowing and the appetite for it is hard to detect. This is the all-too-common slide to a point where, despite solid day-to-day efforts, the team has lost momentum to stay ahead of demand and to influence the shape of its work. Three intertwined moving parts can improve matters: achieving a genuine cut in the volume of work flowing into the team resetting the team’s role, strategy and short-term objectives for the team putting in place the longer-term infrastructure around knowledge management, training and policy/process that helps to better manage future...

ARCHIVED: This Practice Note is archived and no longer maintained. It records the progress of UK primary legislation introduced in relation to the UK’s withdrawal from the EU during the 2019–21 Parliament. Quick links Use the links below to move directly to the relevant section or tracker. Central tracker Follow the options below to access our central Brexit legislation tracker and the Brexit SI database: Brexit legislation tracker Brexit SI database Practice area trackers Visit the trackers covering Brexit legislation within specific practice areas: Commercial Corporate Crime Dispute Resolution Energy Environment Financial Services Information Law Intellectual Property Life Sciences Local Government Pensions Property R& I Tax TMT [ Archived] For more updates and guidance tailored to individual practice areas, see Practice Note: Brexit collection......

Time limits for bringing a judicial review claim On receipt of a judicial review claim form, a public body should first carefully assess whether it has in fact been brought within time. For more detailed guidance, see Practice Note: Judicial review—time limits and the pre-action protocol. Different time limits apply for particular categories of judicial review claim: Challenges to an Upper Tribunal decision must be filed within 16 days of the Tribunal’s decision notice being sent Public procurement claims must be issued within 30 days of when a claimant knew, or ought to have known, of the alleged breach of the public procurement rules The Administrative Court Judicial Review Guide, para 6.4.3.3, states: ‘ Where the claim concerns a decision under [ PA 2023], it must be commenced within the period specified by [ PA 2023, s 106]: 30 days from the date when the claimant first knew or ought to...

General rule on costs in judicial review The default position on costs in judicial review, as in other litigation, is that costs follow the event. That said, parties may apply for pre-emptive costs orders. The costs of, and incidental to, all proceedings in the High Court are within the court’s discretion. By statute, the High Court has discretion to award costs on a judicial review application. Taking into account every relevant circumstance, including the overriding objective, the court may make a costs decision that departs from the default rule. The scope of the court’s discretion includes: whether one party must pay another’s costs the quantum of those costs the timing of payment Ordinarily, costs follow the event unless, on the particular facts, the court considers that a different order on costs, such as a pre-emptive costs order, should be made, for example to enable the claimant to continue the case. An...

There is no single, catch-all answer to whether a given organisation is, in law, a public authority. Instead, the courts have built up case law identifying which entities fall within administrative law through the judicial review route; and Parliament, for its part, has variously specified the public bodies it intends to cover for particular statutes, including the Human Rights Act 1998 ( HRA 1998) and the Freedom of Information Act 2000 ( FIA 2000). Judicial review Judicial review is the principal court process by which individuals and businesses can obtain a remedy for abuses of power by public authorities. It is a public law remedy, concerned solely with policing the exercise of powers of a public nature. Most judicial review claims target those plainly engaged in public power: ministers, government departments and agencies, devolved administrations and legislatures, local authorities, health and education...

This Practice Note focuses solely on the structure of UK legislation enacted by, or processed through, the UK’s four legislatures. It falls into two groups—primary legislation and, with a single exception, secondary (also termed subordinate) legislation. The exception is byelaws, whose place in the legislative hierarchy is outlined below but not treated in detail. Regnal years Acts are now cited by reference to years (see below), but before 1963 citations used regnal years, ie the year of the sovereign’s reign for the parliamentary session in which the Act was passed. How to find legislation—principal types of legislation The principal types of primary and secondary legislation are set out in the table below. In terms of the legislative framework and locating legislation, the key point is that each type employs a distinct numbering series and style of citation. The various citations are shown in the table. The nature of any item of...

The judicial branch The judicial branch of government in England and Wales acts independently from the executive and legislature, and remains institutionally distinct, and comprises the Senior Courts: the Court of Appeal, the High Court and the Crown Court. County Courts and the magistrates’ courts form another tier of the judiciary. The Constitutional Reform Act 2005 ( CRA 2005) made provision for a Supreme Court to serve as the UK’s ultimate court of appeal. The UK Supreme Court came into being in October 2009, supplanting the Appellate Committee of the House of Lords as the nation’s highest court. It stands apart from the Courts of England and Wales, as it also functions as the Supreme Court for Scotland and for Northern Ireland. Judges and magistrates are appointed by, and derive their authority from, the Crown. They must, however, exercise that authority lawfully, adhering to...

This Practice Note considers the legal and practical issues when entering into a subcontract or authorising subcontracting: What is subcontracting? When may subcontracting be allowed? The legal consequences of subcontracting Subcontractor’s liability for the contractor’s consequential loss Subcontractor’s liability to the customer What is subcontracting? While contractual rights and benefits are, unless expressly restricted, generally capable of assignment, contractual duties or burdens are not. Nonetheless, in some cases those obligations can be performed vicariously through subcontracting. Subcontracting is the delegation by the main contractor of part or all of its obligations under its contract with the customer to a third party (the subcontractor) for the subcontractor to perform. Where such vicarious performance is permitted, the contractor’s liability under the main contract does not pass to the subcontractor. The contractor remains answerable to the customer for any non-performance by the subcontractor, even if the customer has agreed to the...

Mitigation applies to all damages claims The notion that a claimant should mitigate their loss applies to every civil claim for damages, whether brought in contract, tort, or other recognised circumstances, although much of the case law on mitigation has arisen from contractual disputes. Consequently, even once causation and remoteness are established—subjects covered in practice notes on contractual breach, and on tort and negligence—the amount recoverable may still be affected if the claimant has not mitigated their loss. In essence, the innocent party cannot obtain damages for loss they could have avoided but did not, whether through unreasonable conduct or by failing to act. The key issue in mitigation is which steps it was reasonable, and which it was not, for the claimant to take. This is often referred to as the duty to mitigate or the rule on...

This Practice Note explores the doctrine of mistake in contract law. It surveys common, mutual and unilateral mistake, errors as to identity, and mistake regarding the signed document (non est factum). It also considers the effect of each type on the contract and how mistakes can be addressed by rectification or by construction. For guidance on dealing with errors in the execution of documents, see Practice Note: Deeds— Failure to comply with formalities and other defects and our Execution collection, in particular, The Basics— Q& As— Mistakes in executing documents. For further help where parties choose to fix a mistake by agreeing an amendment to the operative parts of a contract, see Practice Note: Contract variation. What is a mistake? A mistake is a wrong belief held by one or both parties at the point of contract formation. A mistake may relate to the: subject matter or the...

What is judicial review? Judicial review is the means by which the courts exercise a supervisory jurisdiction over the performance of public functions by public bodies. This supervisory jurisdiction should not be mistaken for, or treated as, a right of appeal. CPR 54.1 states that a 'claim for judicial review' means a claim to assess the lawfulness of: an enactment a decision, action, or failure to act in relation to the exercise of a public function. Proceedings usually take place in the Administrative Court, which forms part of the King's Bench Division of the High Court. Judicial review proceedings are governed by a number of Civil Procedure Rules, Practice Directions and a pre-action protocol. Further detailed and practical guidance is provided in the Administrative Court Judicial Review Guide. The guide is intended to assist parties pursuing judicial review claims in the...

Commercial contracts— Germany— Q& A guide [ Archived, 2022 edition] This Practice Note offers a jurisdiction-specific Q& A overview of commercial contracts in Germany, issued as part of the Lexology Getting the Deal Through series by Law Business Research (published: January 2022). Authors: Lutz Abel Rechtsanwalts Part G mb B— Marius Mann; Benjamin Baisch; Björn Weidehaas 1. Is there an obligation to use good faith when negotiating a contract? Yes. Good faith is set out in section 242 of the German Civil Code ( BGB) and is a basic tenet of German law. It imposes a duty on both contracting parties to fulfil their obligations faithfully and sincerely, taking customary practice into account. Nevertheless, where there is no breach of specific provisions of the BGB or the German Commercial Code ( HGB), enforcing a claim that relies solely on the general clause in section 242 BGB is...

IP rights only carry real weight when they generate revenue for the company. Even where they are already in use, a structured exploitation programme can unlock extra value. This Practice Note provides hands-on guidance for businesses on making the most of their IP rights. It explains how to run an IP audit and build a coherent exploitation strategy. It also outlines the principal routes to exploitation, including assignment, licensing, taking security over IP, and using alternative ownership models. In addition, it highlights the essential provisions to include in assignments, licences and security instruments, and offers pointers on monitoring and enforcing IP so that its worth is preserved... What are the key IP rights? A business will typically hold several types of IP, some registered and others unregistered or arising automatically. The main IP rights a business is likely to own include: Trade marks...

Purpose and aims of public inquiries Public inquiries are typically convened to scrutinise, in depth, events that trigger widespread concern. They fall into two broad categories: statutory inquiries—constituted under the Inquiries Act 2005 ( IA 2005) or other statutory powers available to Parliamentary Commissioners, local authorities, regulators and similar bodies, and non-statutory inquiries—such as those initiated under the royal prerogative to form a Royal Commission Section 44(4) of the IA 2005 expressly preserves the Sovereign’s ability to establish a Royal Commission, and also safeguards any power of a Minister or other person—whether arising from statute or otherwise—to institute an inquiry outside the framework of the Act. Depending on the applicable procedure, inquiry hearings may proceed in public or in private. Lord Justice Salmon, who chaired the 1966 Royal Commission on Tribunals of Inquiry, remarked that secrecy tends to swell the volume of evidence while...

A central aspect of Parliamentary privilege is that each House holds the right to direct its own procedures. Numerous rules and conventions influence how each House operates. Some of these are written and are known as Standing Orders. Standing Orders are written rules created by each House to govern its own proceedings. They cover, for instance, how business is scheduled and conducted, the conduct of MPs and members of the Commons or Lords during debates, and provisions concerning committees. Erskine May: Parliamentary Practice is regarded as the definitive authority on parliamentary procedure. It sets out observed ‘rules’ within each House, including those relating to Standing Orders. Standing Orders of the House of Commons The Standing Orders of the House of Commons set out much (though not all) of the procedure and practice of the House. Standing Orders do not always mirror...

What is a dispute resolution clause? Many commercial contracts include a dispute resolution clause, sometimes labelled an ‘ ADR clause’. Alternative dispute resolution ( ADR) refers to resolving a disagreement without commencing court proceedings. The Commercial Court and the Circuit Commercial Court use the expression negotiated dispute resolution ( NDR) for processes that settle disputes outside the courts, but for ease, this Practice Note adopts the term ADR. The aim of inserting a dispute resolution clause is to give the parties a clear framework for handling any dispute that may emerge under their agreement. Such a clause sets out how conflicts between the contracting parties will be dealt with and will frequently oblige them to engage in a specified ADR method or methods before pursuing litigation or arbitration. For the various ADR options, see Practice Note: Which form of ADR? For general...

Although damages are the principal remedy for a contractual breach (see Practice Note: contractual damages—general principles and related content), there are times in contract disputes—particularly where the agreement has not, or not yet, been breached—when damages are unavailable or not the most fitting response. In those circumstances, the court has a discretionary power to grant equitable relief, which may include: specific performance of any outstanding contractual obligations declaratory relief, for example as to the construction of a particular contractual term injunctive relief (interim or final) compelling a party in breach/about to breach to act or to refrain from acting rectification of a contract or of a deed rescission of a contract or of a deed Where damages for breach are claimed they are ordinarily advanced and, if granted, assessed by reference to the accepted compensatory purpose of contractual damages, ie to place the innocent party in the position they would have...

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...

This Practice Note This Practice Note sets out who holds ownership of IP generated in the course of employment. It then outlines the legal position and prevailing practice for businesses when securing IP rights from employees and contractors, highlighting key considerations. It further offers practical guidance on the principal IP clauses and related provisions commonly found in employment contracts and contractor agreements, as well as practical steps. On a day-to-day basis, employees, consultants and contractors create valuable IP for organisations as part of their assigned duties and responsibilities within their roles. For example: R& D personnel may devise inventions that are capable of being protected by patent. They may also develop new formulae, recipes or algorithms, or design novel methods or processes to make operations more efficient. If these are kept confidential, significant rights can exist as know-how or trade...

Government security classifications The Government Security Classifications policy took effect in April 2014 and has seen several updates since 2018. It exists to make sure information is appropriately categorised, exchanged and safeguarded. The policy covers all information, in any medium, that is created, processed, gathered, stored or shared by government to provide services and run its operations. Classifications reflect how sensitive the material is, judged by the likely impact if it were compromised, lost or misused. It therefore applies to information in any form across government, used to deliver services and conduct business, with handling guided by the likely impact of compromise, loss or misuse. OFFICIAL SECRET TOP SECRET Before this framework, six grades of classification were in use. The regime aims to streamline the process for handling official documents and refresh a system designed for paper-based material, with the...