Legal Practice Notes

Ordinary power of attorney An ordinary power of attorney is a straightforward instrument that authorises an attorney to handle the donor’s financial affairs. Its scope can be as expansive or as restricted as the donor decides. Although some practitioners draw a line between a general and a limited power of attorney as separate forms of ordinary powers of attorney, the label 'general power of attorney' is now commonly used to mean 'ordinary power of attorney'. An ordinary power of attorney is automatically revoked if the donor loses mental capacity, which distinguishes it from an enduring power of attorney or a lasting power of attorney ( LPA). Powers of attorney are a species of agency, yet they differ from conventional commercial agencies because they serve to confirm to third parties that the attorney holds authority, and to define its extent, rather than to regulate the...

STOP PRESS: From 24 February 2025, the principal provisions of the Procurement Act 2023 ( PA 2023) came into force. Procurements launched on or after that date must be conducted under PA 2023. Procurements initiated under the previous frameworks—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 let and managed in line with those rules. See Practice Note: Introduction to the Procurement Act 2023— PA 2023. This content concerns the Procurement Act 2023 regime and offers practical guidance on public procurement under PA 2023. For practical guidance on procedures used under the Public Contracts Regulations 2015 ( PCR 2015), SI 2015/102, see the following Practice Notes: Public procurement—open procedure—pre- PA 2023 Public...

For more hands-on guidance on pivotal legal matters in the wind sector, consult the textbook Wind: Projects and Transactions for practical depth and context, for further reading and reference. What is onshore wind energy generation? Onshore wind energy is produced by installing wind turbines on land to harness moving air so as to turn it into electricity. As air streams past the blades, the rotor spins, thereby driving the generator within the nacelle and converting kinetic energy to electrical power. Wind turbines have five principal components, namely: rotor blades rotor hub generator (housed in the nacelle) tower foundation Further essential features of onshore wind schemes include cabling usually buried underground, a substation linking the project to the national grid, and an access road or track enabling construction, decommissioning and maintenance vehicles to reach the site during all project...

For additional practical guidance on key legal issues in the wind sector, see also the textbook: Wind: Projects and Transactions. What is a 'generating station'? There are several different statutory definitions of a ‘generating station’ depending on context; however, for planning purposes the term will generally be accorded its plain or ordinary meaning, with the proviso that section 235 of the Planning Act 2008 ( PA 2008) imports the inclusive definition in section 64 of the Electricity Act 1989 ( EA 1989) for all purposes other than Part 11. In all other parts, for a generating station wholly or mainly driven by water, ‘generating station’ includes every structure and work for holding or channelling water for a purpose directly connected to the generation of electricity by that station. Planning permission for generating stations at or under 50 megawatts ( MW) Onshore power station...

ARCHIVED: This archived Practice Note offers a brief overview of the income tax and capital gains tax regime introduced by the Finance ( No 2) Act 2017, relevant to offshore trusts settled by non- UK domiciliaries before they became deemed domiciled in the UK, applying from 6 April 2017 until 5 April 2025. It outlines the income tax and capital gains tax ( CGT) rules for non- UK resident trusts established by non- UK domiciliaries prior to becoming deemed domiciled in the UK from 6 April 2017, operating under section 835BA of the Income Tax Act 2007 ( ITA 2007), a provision brought in by the Finance ( No 2) Act 2017 ( F( No 2) A 2017). This Note does not cover the inheritance tax ( IHT) treatment of residential property held through such trusts; see Practice Note: IHT on UK...

This Practice Note sets out the criminal offences concerning offshore tax evasion found in section 106 of the Taxes Management Act 1970 ( TMA 1970). Offences under the TMA 1970 Under the TMA 1970, the offences include: failing to notify that one is chargeable to tax failing to submit a return delivering an inaccurate return Who may be guilty of the offences? Any individual who has not fully or correctly revealed that they are chargeable to income tax ( IT), capital gains tax ( CGT), or both, in relation to offshore matters. The government has indicated that ordinary principles of criminal secondary liability also apply, so the offence extends to an agent who knowingly files returns that omit tax due. See Practice Note: Joint enterprise and secondary liability. Elements of the offences which the prosecution has to prove The components of the offences are...

This Practice Note sets out the legal principles relevant to occupational cancer claims, concentrating on causation and the approach the court will take in deciding whether the claimant has satisfied the burden of proof. As with other personal injury actions, the claimant must demonstrate that: the defendant owed them a duty that duty was breached the breach resulted in damage Duty and breach Where the defendant employed the claimant, disputes about the existence of a duty should rarely arise. Claimants ought to found their case on breaches of applicable statutory duties alongside negligence at common law. Commonly, in disease claims said to stem from dust in a factory environment, the claimant will plead, according to the period of the alleged exposure, a breach of section 47 of the Factories Act 1937 or section 63 of the Factories Act 1961......

Practice Note This Practice Note sets out the paperwork that must be filed when commencing proceedings for a decree of nullity (that is, an application for a matrimonial order). It applies to relevant applications issued before 6 April 202. It also explains steps where the marriage certificate is unavailable. It highlights the core documents, including the notice of proceeding and the acknowledgement of service. From 6 April 2022, the Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) came into force. Although DDSA 2020 does not alter the substantive law on nullity proceedings, it brings consequential procedural changes under the amended Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, affecting both applications for nullity and nullity of marriage orders issued on or after 6 April 2022. The amendments chiefly concern terminology, refreshed forms, and provisions relating to service. These updates apply to...

This Practice Note sets out the present landscape for biodiversity offsetting together with mandatory and voluntary nature markets. It covers what biodiversity offsetting entails, the defining features of nature markets, drivers for participants, market rules, the ‘stacking’ of multiple nature benefits, and the anticipated future direction of biodiversity offsets and nature markets. Overview What is biodiversity offsetting? Biodiversity offsetting is the means by which organisations carry out or finance environmentally restorative initiatives to balance out the harm they cause, whether directly or indirectly, to biodiversity through their operations and across their value chains. Biodiversity offsetting under planning laws Safeguarding, improving and ‘offsetting’ biodiversity effects has been entwined with the English planning system since before 2006, when the former Planning Policy Statement 9 (now incorporated into the National Planning Policy Framework) encouraged planning authorities to explore ways of maintaining, restoring or adding to networks of natural habitats and other...

Naturalisation Naturalisation is the leading route by which adults obtain British citizenship. It allows those who do not meet the criteria for automatic registration, but who have resided in the UK for defined periods, to apply to become British citizens. Anyone naturalised becomes a British citizen otherwise than by descent. The legal basis for applications is contained in the British Nationality Act 1981 ( BNA 1981). Section 6 and Schedule 1 of the BNA 1981 prescribe a set of conditions, some mandatory and others capable of being disregarded at the discretion of the Secretary of State for the Home Department ( SSHD). The requirements vary for an applicant who: is married to, or in a civil partnership with, a British citizen; or serves in Crown service overseas, or is married to a British citizen in such...

When a charity plans to: mortgage (or re‑mortgage on revised terms) property it owns buy property with mortgage funding, or grant a charge to secure other liabilities the charity trustees must address several considerations and complete certain further steps. Here, ‘charity trustees’ means those who have overall control and manage the administration of the charity (for example, the directors of a charitable company or the officers of a charitable unincorporated association). Power to mortgage The charity must have authority to borrow and to charge its property as security for that borrowing. This authority may be expressly included in the charity’s governing document. If no express power exists, a sufficient power may arise: under the Trusts of Land and Appointment of Trustees Act 1996, s 6(8), which grants trustees of land ‘all the powers of an absolute owner’ (including the ability to borrow money and...

Misleading actions under DMCCA 2024 From 6 April 2025, the Digital Markets, Competition and Consumers Act 2024 ( DMCCA 2024) repealed and superseded the consumer protection framework in the Consumer Protection from Unfair Trading Regulations 2008 ( CPUTR 2008), SI 2008/1277. This Practice Note addresses the offence of participating in a commercial practice that amounts to a misleading action under DMCCA 2024. Although the provisions for this offence broadly reflect those in CPUTR 2008, SI 2008/1277, the position has been clarified so that a misleading presentation of accurate information may still amount to a misleading action. For further examination of unfair commercial practices under DMCCA 2024, see News Analysis: The new law relating to unfair commercial practices. Note that CPUTR 2008, SI 2008/1277 continues to apply to conduct that took place before DMCCA 2024 commenced. For guidance on misleading actions under the earlier regime, see...

Offence of misconduct in the course of winding up Under section 208(1) of the Insolvency Act 1986 ( IA 1986), criminal liability can arise in a range of situations occurring while a company is being wound up, during the liquidation process. The provisions in IA 1986, s 208 make it an offence to seek to avoid the duties on corporate officers to engage with the liquidator openly and in good faith......

This Practice Note presents an overview of the principal points concerning a members’ voluntary liquidation ( MVL) from a dispute resolution perspective. What is a MVL? An MVL is the procedure by which a company, via a resolution of its members, elects to cease its operations and progress towards dissolution. Throughout the process, a licensed insolvency practitioner, authorised by a recognised professional body, must be appointed as the company’s liquidator. An MVL is usually chosen where a solvent company has fulfilled its purpose and the members no longer wish to keep it as a corporate vehicle. It is also adopted where members intend to realise their investment in a solvent company. For further reading, see Practice Note: What is a members’ voluntary liquidation and when is it typically used? If the company is insolvent, an alternative route is required, such as a creditors’ voluntary...

Improving efficiency in a continuous improvement context typically follows five core steps: identify (define) which process requires enhancement measure the issue analyse the information improve the process control, ie embed the revised process so it becomes business as usual Management consultants often describe this as the DMAIC framework. This Practice Note underscores the need to measure the impact of the changes you have introduced to raise efficiency (through steps 1–5) and to demonstrate the degree of success. Also see Practice Notes: Continuous improvement—law firms—step 1—identify and define the problem Continuous improvement—law firms—step 2—measure the problem Continuous improvement—law firms—step 3—analyse what's causing the problem Continuous improvement—law firms—step 4—improve the process Continuous improvement—law firms—step 5—embed the process—making changes firm-wide Continuous improvement—law firms—step 5—embed the...

Payments relating to pregnancy or maternity Employees may have entitlement to several types of payment connected to pregnancy or maternity, including: pay for time taken off to attend antenatal care (see Pay during time off for antenatal care, below) pay during suspension from duties on maternity grounds (see Pay during suspension from work, below) pay where an agency worker is removed for maternity reasons (see Pay following removal of agency worker on maternity grounds, below) statutory maternity pay (see SMP—entitlement, below) contractual maternity pay (see Contractual maternity pay) and other relevant pay maternity allowance, paid by the Benefits Agency, with eligibility depending on the individual’s previous National Insurance contributions ( NICs) (see Maternity allowance, below) Apart from maternity allowance, these payments are generally made by the employer. For information: on maternity leave in general, see Practice Note: Maternity leave on keeping in touch ( KIT) days, see Practice Note: Work during maternity or...

The rules relating to privilege, disclosure and waiver can vary widely from one jurisdiction to another. In recent years, collaboration among enforcement bodies has intensified significantly. This is reflected in instances of deferred prosecution agreements ( DPA) spanning several jurisdictions and joint working between the UK and nations including France and the USA. See Practice Note: DPAs in practice. Where matters are multi-jurisdictional, it is essential to take privilege advice from lawyers in every relevant jurisdiction from the outset to ensure important material retains privilege and to minimise risk to the client. For instance, releasing privileged documents under a limited waiver in one country might be treated as a full waiver in another, with consequent loss of protection. This Practice Note outlines key privilege issues that emerge in cross-border investigations and sets out practical measures to safeguard privilege in practice. For guidance on legal...

ARCHIVED: This Practice Note has been archived and is not maintained. This archived Practice Note is no longer updated. It outlines the Loan Market Association ( LMA)’s method for calculating interest in its LIBOR-based facility documentation. It reviews the interest calculation clause—covering margin, the London Interbank Offered Rate ( LIBOR), the Euro Interbank Offered Rate ( EURIBOR) or another benchmark, plus mandatory costs—before concentrating on how the benchmark rate (such as LIBOR) is derived. How LMA documents define and compute LIBOR, EURIBOR or an alternative benchmark, including calculation of the Screen Rate—see Definition of LIBOR, EURIBOR and Benchmark Rate in LMA documents and Definition of Screen Rate in LMA documents Drafting implications of ICE Benchmark Administration Limited assuming responsibility for administering LIBOR Drafting effects of the ICE LIBOR Error Policy and the Euribor Intraday Refixing Policy, which set out refixing and...

This Practice Note outlines how the Criminal Justice Act 2003 ( CJA 2003) has broadened the use of video and audio technology in criminal cases, allowing defendants, witnesses and others to engage in a wide range of hearings. The Lord Chief Justice has issued statutory guidance to assist the criminal courts in understanding when and how live links should be deployed. That guidance (available here) is intended to be read alongside the Criminal Practice Directions 2023 ( Crim PD), particularly Crim PD 5.5. For practical advice to ensure remote participation proceeds smoothly, see Practice Note: Practical guide to remote hearings in the criminal courts, as well as Practical tips for remote attendance at criminal hearings—checklist. What are live links? Under the CJA 2003, eligible criminal proceedings in England and Wales may use two forms of live link: live video links and live audio links. A judge or...

Leaver provisions and different types of scheme When putting together share plan rules or an option or award agreement, an employer will usually want to spell out what becomes of the relevant option or award if the employee’s employment ends. Any clause addressing this point is commonly called a ‘leaver provision’. For most share incentive arrangements, such leaver terms will be contained in the master plan rules and/or the recipient’s specific award paperwork. By contrast, where the award’s structure makes the individual a shareholder from day one, for example under a growth share arrangement, the leaver mechanics may instead be set out in the company’s articles of association, so as to address any obligation on the employee shareholder to transfer their shares on departure from the company or, as appropriate, the wider group. Where a share award is granted under a statutory...