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Introduction to statutory interpretation The aim of statutory interpretation is to determine the legal meaning of a statute, that is, the sense that expresses the legislator’s intention. The clearest guide to that intention is the statutory wording itself, read in its context and with its overall purpose in mind, and its broader legislative setting. Courts should seek to fulfil the purpose of legislation by construing its language, so far as they can, in the manner that most effectively serves that purpose. Put differently, the courts’ default method is purposive, and every enactment is to be construed with that end in view. There is a starting presumption that the grammatical and ordinary sense of an enactment reflects the meaning intended by the legislator. Where an enactment reasonably bears only a single meaning, and no other interpretative tools or
This Practice Note addresses identifying a fiduciary, fiduciary duties and obligations, the no conflict rule, the no profit rule, a fiduciary's duty of confidence, and the remedies available for breach of fiduciary duty. Who is a fiduciary? There is no definitive catalogue of relationships that give rise to fiduciary obligations at common law in every situation universally. Certain relationships are inherently fiduciary, eg trustee and beneficiary, solicitor and client, principal and agent, business partner and co-partners, together with mortgagor and mortgagee. The obligations of some fiduciaries have been set out in statute; for instance, trustees owe a statutory duty of skill and care under section 1 of the Trustee Act 2000 (TrA 2000), and directors' relationships with their companies are addressed in the Companies Act 2006 too. For guidance on directors' fiduciary duties, see Practice Note: of directors for further detailed
Definition of ADR Alternative dispute resolution (ADR) is defined in the CPR Glossary as a collective label for methods of settling disputes other than through the usual trial process. Some courts adopt the term ‘negotiated dispute resolution’ (NDR) to describe resolution by alternative means; for ease, this Practice Note uses ADR. For guidance on how ADR is addressed in the various court guides, see Practice Note: ADR and NDR in the court guides. In essence, ADR is a means of resolving a dispute outside the court system. It typically involves a neutral third party who either helps the parties reach a negotiated outcome, or issues a determination of the dispute that is legally binding. A binding result can follow where the agreement to refer the dispute to ADR so provides. There are multiple forms of ADR processes. For an outline of the different types and their
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
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Legal framework Although a grant of probate is not a statutory necessity in Guernsey for a deceased person’s Will, in practical terms it is commonly required to enable the administration of the deceased’s Guernsey‑situs assets. As a consequence, individuals domiciled abroad who hold Guernsey‑situs property are increasingly adopting Guernsey‑specific Wills to streamline the management of their Guernsey estate on death. Guernsey’s legal system is founded on customary law, with succession and real property rules derived from the Norman and French common law predating 1789. That heritage influences how Guernsey Wills are interpreted and how succession to Guernsey realty operates. These historical foundations continue to shape current practice and procedure today. Even so, Guernsey also seeks to acknowledge the validity of foreign Wills, aligning with shared objectives of private international law. This policy aims to ease cross‑border estate...
Pilot schemes in the Family Court A range of pilot schemes are currently in force within the Family Court. Their framework is contained in the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, Pt 36, together with the associated practice directions. Many, though not all, sit within the HM Courts and Tribunals Service ( HMCTS) digitalisation programme, aiming to improve the efficiency of family proceedings. This Practice Note summarises the pilots, including those concerned with: divorce private and public children financial remedy applications consent orders domestic abuse transparency video hearings female genital mutilation forced marriage protection orders The table below identifies when each pilot began, when it expired or is due to expire, and where to locate further guidance on the individual schemes. The pilots are set out in FPR 2010, SI 2010/2955, Pt 36 and the...
This Practice Note This Practice Note reviews the process and requirements for lodging applications for settled and pre-settled status under the EU Settlement Scheme (the Scheme). It addresses: the need to make and submit a ‘valid’ application detailed procedural steps for seeking immigration permission via the Scheme (for European Economic Area ( EEA) citizens and non- EEA citizens, from inside and outside the UK) the Home Office’s ‘ EU Exit: ID Document Check’ app the evidential standards and proofs (covering proof of identity and nationality, residence, and extra documents required for family members) formal authority for a legal representative to liaise with the Home Office in relation to the application the ongoing obligation to keep the Home Office updated regarding specified details following the grant of leave The Practice Note also outlines the application route for family permit...
CASE HUB NOTE—appeal lodged before the General Court in Case T-84/22 ARCHIVED — this archive reflects the position as at the 2 December 2021 decision and is no longer maintained. For more, see the timeline, commentary, and related cases. Case facts Outline European Commission Article 101 TFEU investigation into three cartels in the Spot Foreign Exchange market for 11 markets ( AT.40135). The cartels featured the exchange of confidential information and, at times, the coordination of trading strategies. Latest development On 2 December 2021, the Commission adopted a second infringement decision after Barclays, RBS and HSBC settled with the Commission and acknowledged participation in a third cartel (the Commission’s 2021 decision). Fines totalling €261m were issued. Under the ordinary procedure, the Commission also imposed fines of €83m on Credit Suisse. For the ‘ Sterling Lads’ cartel, the penalties were: UBS — €0 (immunity...
ARCHIVED: This Practice Note has been archived and is not maintained. Originally prepared for Lexis Practice Advisor®, in the US, this Practice Note sets out an introduction to the Leahy- Smith America Invents Act ( AIA), the first significant overhaul of the US patent system since the Patent Act of 1952. The AIA moves the US system from first-to-invent to first-to-file for patents with an effective filing date on or after 16 March 2013. In a first-to-file regime, the patent is awarded to the inventor who files earliest, rather than the inventor who first reduces the invention to practice. This encourages timely filings and, in most instances, removes the need to resolve who invented first. The change to first-to-file also harmonises the US patent framework with foreign systems, which are largely...
This Practice Note summarises the Financial Conduct Authority’s ( FCA) Asset Management Market Study, conducted from November 2015 to June 2017. It considers: the study’s background its key findings remedies the FCA proposed to tackle the problems uncovered and progress in implementing those remedies since the FCA’s final report Background to the study The FCA released the terms of reference for the Asset Management Market Study ( AMMS) on 18 November 2015, alongside its dedicated AMMS webpage. Those terms emphasised the scale of UK assets under management—around £6.6trn in 2014–15—and the central role of asset managers in matching prospective investors with companies or governments seeking capital for investment, expansion or to finance ongoing operations. Given the sector’s substantial size and its impact on consumers, whether directly (for example via pension funds) or indirectly (through insurance premiums), the FCA stressed that effective competition is vital for these services. On that basis, the...
ARCHIVED: This archived Practice Note summarises the Fee- Paid Judicial Pension Scheme ( FPJPS), introduced by the Judicial Pensions ( Fee- Paid Judges) Regulations 2017, SI 2017/522, arising from O’ Brien v Ministry of Justice. It covers the statutory framework, governance, eligibility, contributions and benefit design. This note is not maintained... Statutory framework The Judicial Pension Scheme includes several arrangements: Judicial Pension Scheme 1981 ( JPS 1981). Salaried judges appointed before 31 March 1995 will usually be members of this unfunded final salary scheme, created under JPA 1981. Judicial Pension Scheme 1993 ( JPS 1993 or JUPRA). Salaried judges appointed between 31 March 1995 and 31 March 2015 will generally be members of this unfunded final salary scheme, established under JPRA 1993. Note that: There is an entitlement to elect to move from JPS 1981 to JUPRA at any point up to six months after...
This Practice Note considers the standard of proof in civil claims based on the defendant’s alleged fraud. It addresses the test for dishonesty (per Ivey v Genting) and identifies when a court may draw an inference of dishonesty (and therefore fraud) from facts it finds proved. This discussion is separate, albeit connected, to the issues of pleading fraud and dishonesty—see Practice Note: Civil fraud—pleading fraud and dishonesty. This Practice Note considers: the standard of proof in civil fraud cases dishonesty in a civil context whether recklessness equates to dishonesty, and the concepts of ‘targeted suspicion’ and ‘blind-eye knowledge’ evidencing and proving dishonesty in civil claims, including: the general approach to evidence in fraud cases, whether the alleged fraud ought to have been obvious, the witnesses (their credibility or their absence) and the position of third parties whether...
ARCHIVED—this case hub records the position as at the judgment dated 16 April 2019; it is no longer maintained or updated. NOTE— In July 2019, the Supreme Court granted Mastercard permission to appeal. See the timeline, commentary and related cases for further details and context. Case facts Outline An appeal against the CAT’s judgment of 21 July 2017, which refused an application for a collective proceedings order in relation to potential follow‑on actions brought against Mastercard. Latest development On 16 April 2019, the Court of Appeal delivered its judgment, allowing the appeal and sending the CPO application back to the CAT for a re‑hearing. In particular, the Court of Appeal held that the CAT had applied the incorrect test when considering the commonality of the claims—at the certification stage the proposed representative need only show that he has a real prospect of success (here, regarding...
ARCHIVED: This archived Practice note provides links to relevant News Analyses on Brexit featured on Private Client and found in the Brexit collection. Date, News Analysis and a brief description are set out below. 26 January 2021 — Private Client— Brexit considerations Private Client analysis: On 24 December 2020, one week before the Brexit transition ended at 11pm on 31 December 2020 ( IP completion day), Prime Minister Boris Johnson confirmed the UK and EU had reached a deal. Angharad Lynn, senior associate at VWV, assesses the effect of the Trade and Cooperation Agreement ( TCA) on private client law in the UK. 22 January 2021 — Pensions after Brexit and the UK- EU trade deal Pensions analysis: Rosalind Conner and Danyal Enver, managing partner and associate respectively at Arc Pensions Law, examine the consequences for pensions after Brexit in the wake of the...
ARCHIVED—this case hub captures the position as at the decision of 8 July 2021 and is no longer maintained. NOTE—appeal lodged before the General Court in Case T- 87/22. See further, timeline and commentary. Case facts Outline European Commission Article 101 TFEU investigation into limiting competition in the development of technology to clean diesel passenger-car emissions (ie nitrogen oxide abatement) ( Case AT.40178). Latest development On 8 July 2021, the Commission issued an infringement decision after the three companies settled with it and accepted their role in the cartel. Overall fines of €875m were imposed. Fines per company were: Volkswagen—€502.362 (with a 45% leniency reduction and a 10% settlement reduction) BMW—€372.827m (including a 10% settlement reduction) Daimler—no fine (as it received immunity) Parties Bayerische Motorenwerke AG ( BMW): a German car manufacturer based in Munich Daimler AG ( Daimler): a German car...
ARCHIVED : This Practice Note explains the position if the UK and the EU reach no agreement on taking evidence after the UK leaves the EU. During the implementation period beginning on exit day (ie the day the UK departs the EU), the withdrawal agreement’s provisions apply. For guidance on that period and its effect on evidence-taking, see Practice Note: Brexit implementation period—taking of evidence [ Archived]. It considers the consequences of a no-deal exit for securing evidence in civil and commercial cases. Two principal UK regulations address a no-deal Brexit and the taking of evidence: The Service of Documents and Taking of Evidence in Civil and Commercial Matters ( Revocation and Saving Provisions) ( EU Exit) Regulations 2018, SI 2018/1257, which revokes the key EU instrument in this area, namely Regulation ( EC) 1206/2001 ( Taking of Evidence...
This Practice Note explores the function and significance of boilerplate clauses within a contract. It highlights the boilerplate provisions most frequently seen in transaction-related agreements and considers the method to adopt when reviewing or drafting agreements that contain boilerplate terms. Solicitors handle an extensive range of transactions, yet every one of them will, in some respect, involve written contracts. Each of those contracts ought to include certain boilerplate provisions. What is boilerplate? There is no universally accepted definition of a ‘boilerplate’ clause. Such clauses are often regarded as standard, catch-all terms. They are routinely accepted with minimal thought or bargaining, but treating them this way is risky. It is better to view ‘boilerplate’ as a label for the clauses inserted to govern the mechanics of how the agreement operates and the legal considerations common to most transactions. They are typically located at the start and the close of an...
This Practice Note sets out the remedies open to a landlord where a tenant is in breach of a covenant governing use of the premises: forfeiture, an injunction and/or damages. For guidance on use-restricting covenants and when consent to change may reasonably be withheld, see Practice Note: Permitted use, change of use and preventing a competing use — leases......
ARCHIVED This Practice Note is no longer being updated. It is kept for historical interest and to give practitioners a quick snapshot of developments in extradition case law across 2019. The Note logs extradition appeal judgments month by month from January 2019. For key 2018 decisions, see Practice Note: Extradition appeals tracker—2018 decisions [ Archived]. If you know the judgment date, use the list below or the links on the left-hand side of the screen to jump straight to the relevant table. Alternatively, search this Practice Note with [ CTL]+[ F] using the case name, citation, or a suitable term. Extradition appeal cases by month January 2019 February 2019 March 2019 April 2019 May 2019 June 2019 July 2019 August 2019 September 2019 October 2019 November 2019 December 2019 December 2019 Case: Asenov v Local Court of Arad Romania [2019] EWHC 3489 ( Admin), [2019] All ER ( D) 142 (...
This Practice Note explores the Hague Convention on Choice of Court Agreements and how it operates when enforcing a court judgment or a judicial settlement. It addresses what counts as a judgment and a judicial settlement, the criteria for recognition and enforcement of a court judgment, including severability, together with enforcement of non-monetary orders and judicial settlements. The Practice Note also outlines the steps for recognition and enforcement, the supporting documents needed, and points specific to England and Wales. Finally, it considers the bases for refusing recognition or enforcement under the convention. For practitioners using the Convention, an explanatory report by Trevor Hartley and Masato Dogauchi offers detailed commentary on each article. It further signposts severability within judgments and the treatment of non-monetary relief and settlements under the convention. Does the Convention...
This Practice Note explores the Financial Conduct Authority ( FCA)’s expectations of culture within financial services firms, and how regulatory instruments such as the Senior Managers & Certification Regime ( SM& CR) and the Consumer Duty are used to direct FCA supervision and enforcement towards firms’ cultural frameworks. Although the FCA is the dominant conduct regulator in this space, the Prudential Regulation Authority ( PRA) also scrutinises how culture influences prudential risks, which is considered below. Key points addressed include: regulators’ position that culture is a principal driver of conduct outcomes and market integrity the expectation that culture is actively owned and overseen by firms and their senior managers the connection between culture, psychological safety and challenge, and how the SM& CR, amendments to the Conduct Rules to reflect the FCA’s expectations on...
This Practice Note outlines the insolvency regime brought in by the Technical and Further Education Act 2017 ( TAFEA 2017), the Further Education Bodies ( Insolvency) Regulations 2019 ( FEBR 2019), SI 2019/138, and the Education Administration Rules 2018 ( EAR 2018), SI 2018/1135, which took effect on 31 January 2019. TAFEA 2017 establishes the structure of an insolvency framework applying to further education and sixth form colleges in England and Wales. It also introduces a special administration regime designed to protect the interests of learners where a college becomes insolvent. Background The Further and Higher Education Act 1992 ( FHEA 1992) created a new further education sector providing full-time education for 16–18 year olds and introduced a distinct corporate legal entity, the ‘further education corporation’. The Association of Colleges reports that over 95% of institutions in the sector are either further education...
Scope of this Practice Note This Practice Note addresses matters linked to technology used to help firms comply with their regulatory duties—often referred to as ‘regtech’. It reviews how the Financial Conduct Authority ( FCA) and the Bank of England ( Bo E) (including the Prudential Regulation Authority ( PRA)) engage with regtech, highlights industry activity, and records both the proposal and subsequent withdrawal of an FCA ‘ Robo Handbook’. It examines these facets of what has come to be known as ‘regtech’: what is regtech? the FCA’s approach FCA Tech Sprints digital sandbox other regulator-side developments towards a Robo Handbook industry-side developments other initiatives What is regtech? Regtech is a broad label for the use of technology to help firms discharge regulatory requirements more efficiently and effectively than legacy systems allow—and, at times, for the use of...
This archived Practice Note captured the principal developments anticipated to influence the corporate governance regime in 2019. It has not been updated since 2019. For developments from January 2020 onwards, see Practice Note: Corporate governance horizon scanning—2020 and beyond. Please send suggestions for topics we might track to Knowhow Lawyers Corporate@lexisnexis.co.uk... Mini-index January 2019 February 2019 March 2019 April 2019 June 2019 July 2019 September 2019 October 2019 No specific date in 2019 confirmed 2020 and beyond January 2019 From 1 January 2019, the revised UK Corporate Governance Code ( UKCG Code) applies to premium listed companies with accounting periods beginning on or after that date. The update stems from the government’s response to the Green Paper Consultation on Corporate Governance Reform, together with the Hampton- Alexander Review and the Parker Review. Headline changes address...
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When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
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