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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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Prior to the coming into force of the Landlord and Tenant Act 1987, Part II ( LTA 1987), the court retained a wide-ranging jurisdiction to appoint a receiver to assume control of the management of any property (including a block of flats) whenever it was considered just and convenient to do so. Nonetheless, that power was seldom exercised in practice in relation to blocks of flats, likely owing to the expense and the frequent requirement, in most cases, and, where applicable, to evidence default by the landlord or managing agents regarding the performance of the landlord’s repairing, maintenance or insurance obligations under the lease. Part II of the LTA 1987 offers an alternative remedy by vesting power in (what are now) the First-tier Tribunal ( Property Chamber) in England and the leasehold valuation tribunal in Wales to appoint a manager to take over the...
Scope of the right to buy England Across England, the Right to Buy ( RTB) is provided for by the Housing Act 1985 ( HA 1985)... Wales In Wales, RTB (including the Preserved Right to Buy) and the Right to Acquire were ended on 26 January 2019 under section 6 of the Abolition of the Right to Buy and Associated Rights ( Wales) Act 2018, together with the Abolition of the Right to Buy and Associated Rights ( Wales) Act 2018 ( Commencement and Saving Provisions) Order 2018, SI 2018/100, art 2. From that date, no new applications were taken in Wales. See LNB News 30/01/2018 82... What is the right to buy? The RTB scheme grants qualifying secure tenants a statutory entitlement to purchase their home at a discount. Subject to conditions, a secure tenant in England may buy the freehold of a house or the lease of a flat (or a...
This Practice Note outlines a practical method for properly assessing a business-to-business commercial contract (for example, an intellectual property licence arrangement) in relation to UK VAT purposes......
Reviews in insolvency proceedings A review in insolvency proceedings is the court’s reconsideration of an order it has already made. The review mechanism, available in both corporate and personal insolvency, permits a determination to be looked at again either by the judge who issued it (see Official Receiver v Bathurst) or by a different judge (see Re W & A Glaser Ltd). The authority to revisit orders is a feature particular to the insolvency court. For corporate insolvency, the power appears in the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, r 12.59(1), which provides that the corporate insolvency court may review, rescind, or vary any order it has made when exercising its jurisdiction. The equivalent in personal insolvency is section 375 of the Insolvency Act 1986 ( IA 1986). That provision, mirroring the corporate regime, states that the court may...
This Practice Note sets out the key regulatory obligations that apply to a company admitted to the equity shares (commercial companies) category (sometimes also called the commercial companies category) when it undertakes, from time to time, or plans to undertake, a transaction treated as a reverse takeover under Chapter 7 of the UK Listing Rules, UKLR 7. In this Practice Note, for convenience, any reference to a listed company means a company listed in the commercial companies category. A reverse takeover is, in essence, where a listed company, or its subsidiary, acquires a business, company or assets (the target) and, by reference to a set of prescribed class tests, the target is the same size as, or larger than, the listed company, or the deal effectively brings about a fundamental change to the listed company’s business, board or voting...
This Practice Note reviews the effect of the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023) on pensions law. At a headline level, the immediate effect has been modest, not least because no pensions measures were ‘sunsetted’ as 2023 closed. Looking ahead, however, volatility and doubt are expected, since REUL( RR) A 2023 permits amendment, alteration, and/or replacement or restatement of retained EU law ( REUL). Importantly, the revised methodology for construing REUL, alongside broader judicial latitude to move away from it, suggests that such uncertainty may persist until lengthy litigation applies the new tests and mechanisms. From 1 January 2024, REUL still in force is generally described as ‘assimilated law’, under section 5 of REUL( RR) A 2023 (see: Assimilated law below, and Practice Note: Assimilated law), and is ordinarily to be read by...
At any one time, most practices carry a handful of aged, typically modest, residual balances tied to client matters within the firm. In the normal run of business, handling these residual balances ought to be straightforward, routine housekeeping. On occasion, though, the volume and spread of residual balances is such that a more substantial project is needed to bring them back under firm control. This Practice Note explores practical questions that can confront the project sponsor, eg the COLP or COFA, when initiating a programme to address your firm’s residual balances. It sets out the circumstances that may prompt commencing a project, how best to start and organise the work, and offers pragmatic pointers designed to lighten the project sponsor’s workload considerably. It should be read in conjunction with Practice Note: Residual balances—law firms. In what circumstances will a residual balances project be...
What is a res judicata? A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal. Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice. in personam—binds the parties and their privies in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world) A party may rely on res judicata: as an estoppel to defeat an opponent’s claim or defence; and/or as the basis of their own claim or...
NOTE—to check if notification thresholds within the Republic of Ireland and across the world are satisfied, see also: Where to Notify. 1. Have there been any recent developments regarding the Irish merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Ireland? The Irish Competition ( Amendment) Act 2022 (the 2022 Act) broadened the merger control remit of the Competition and Consumer Protection Commission ( CCPC). A key reform introduced a ‘call-in’ mechanism empowering the CCPC to demand notification of sub-threshold deals where the transaction could harm competition in markets for goods or services within the Republic of Ireland/the State. Although the CCPC has not yet, to date, exercised this tool, it has stepped up scrutiny of non-notifiable deals by sending formal requests for information ( RFIs), with a view to the...
Remuneration The pay of office-holders in both corporate and personal insolvency cases is governed by the Insolvency Act 1986 ( IA 1986) and the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024. When a court considers what an office-holder should receive, it will also apply part six of the Practice Direction on Insolvency Proceedings ( PDIP). Office-holders should further take into account Statement of Insolvency Practice ( SIP) 9, which provides guidance on the basis for fixing remuneration. Although SIPs are not legally binding, they represent best practice and non-compliance can result in serious disciplinary consequences. As an office-holder’s fees are met from the assets of the relevant insolvent estate as an expense, creditors have a direct and clear stake in the level of remuneration. The legislation reflects this by enabling creditors to decide the basis on which an...
This Practice Note outlines the regulatory duties for first aid in an office environment, covering the need for stocked first aid boxes, trained first aiders and suitable first aid rooms. For practical advice on running first aid at work, see Practice Notes: How to conduct a first aid needs assessment and How to manage first aid in the workplace. What is first aid? The term ‘first aid’ covers both situations where preventative assistance or care is needed from doctors or nurses, and the management of minor injuries by people without medical qualifications. Legislative requirements There are several legislative duties relating to first aid at work, including: the provision of first aid first aiders first aid room first aid box/kit informing staff members of the public signs and signals giving or administering drugs or medication The Health and Safety Executive ( HSE) is the national independent regulator for workplace health and safety and first aid matters, playing a key part in...
What is offshore wind energy generation? Offshore wind energy generation captures the movement of air using turbines placed in open waters, most commonly at sea. These offshore turbines feature blades that turn a rotor connected to a generator, mounted on either fixed or floating foundations and secured to the seabed. As the wind rotates the rotor, the generator transforms that mechanical motion into electricity, which is then delivered to the electrical grid via underwater cables for use by end-users. While offshore and onshore wind farms have much in common, a notable difference is how steadily they can produce power. Output from wind is largely driven by wind conditions, which can vary widely. At sea, wind flow faces fewer obstacles and is therefore generally stronger and more consistent, so offshore turbines are engineered to harness this—offering far higher capacities, typically 8–12 megawatts ( MW), compared with...
Overview of the non-party campaigning regime Part VI of the Political Parties, Elections and Referendums Act 2000 ( PPERA 2000), as amended, establishes the regulatory framework for non-party campaigners in the run-up to UK and region-wide elections. Although PPERA 2000 sets a national baseline, its application can vary across the UK’s devolved administrations, and local electoral administration rules in those areas may modify or supplement the regime. In particular, amendments made by the Elections Act 2022 ( EA 2022) do not extend to the Senedd or the Scottish Parliament. By way of example, EA 2022 inserted PPERA 2000, s 89A, which defines a reserved regulated period Non-party campaigners are individuals or organisations that carry out activities which could reasonably be regarded as intended to influence the result of an election under the legislation, without being candidates or political parties themselves. Under the...
This Practice Note This Practice Note explores the impact that an unreasonable refusal of alternative employment may have on an employee’s entitlement to a redundancy payment, the requirements an offer of alternative work must satisfy for that entitlement potentially to be affected, what amounts to an offer of suitable employment, what constitutes an unreasonable refusal, and the burden of proof in such matters. Employees who are made redundant are sometimes offered further work. Where such an offer is made but the employee declines it, this may have the effect of removing the employee’s right to a redundancy payment. Only offers of further work that meet certain conditions have the capacity to affect the employee’s entitlement to a redundancy payment. The conditions are: the offer must be for a renewed contract, or a new contract the renewed or new contract must commence immediately after the old one ends, or no...
Rent Rent is the amount payable by a tenant to the landlord for occupying or using the premises. The rent figure must be capable of being worked out from the lease; it need not be fixed for the whole term, but the starting rent must be identified together with a method—typically a rent review clause—to determine later rents. Rent is usually expressed as exclusive of VAT, payable without deduction and without the need for demand. See Practice Note: Rent and rent review in commercial leases in Scotland. Commercial rent is ordinarily paid in advance by equal instalments on the quarter days, namely: 28 February, May, August and November or, where English parties prefer, 25 December, 25 March, 24 June and 29 September Monthly payment is increasingly common. Where rent is payable quarterly in advance, the entire instalment falls due on the quarter day. This can be...
By long-standing statutory rules, a limited company with share capital was allowed, most recently under the now-repealed Companies Act 1985 ( CA 1985), to: convert some or all of its fully paid shares into stock; and reconvert any or all of its stock into fully paid shares of any denomination ( CA 1985, s 121). Those powers had to be authorised by the company’s articles of association and each was to be exercised by a shareholders’ resolution passed at a general meeting. From 1 October 2009, when section 540(2) of the Companies Act 2006 ( CA 2006) came into force, companies have been unable to convert shares into stock, unless such conversion was approved before that date. Nevertheless, where fully paid shares were turned into stock before 1 October 2009, the company may still reconvert that stock into fully paid shares of any nominal value, in line with CA...
This Practice Note explains the steps and prerequisites necessary for securing recognition and enforcement of international arbitration awards in France, namely international arbitral awards made in France and those delivered abroad. Please note: the French decisions mentioned are not reported by Lexis Nexis® UK. The rules applicable to the recognition and enforcement of international arbitral awards appear in Book IV of the French Code of Civil Procedure ( FCCP), which sets the legal framework. It outlines the procedure to follow in practice. Procedure and conditions to obtain the recognition and enforcement of international arbitral awards in France International arbitral awards are enforced through an enforcement order (ordonnance d’exequatur) granted by the judicial court (tribunal judiciaire) at the seat of the award for international awards made in France, or by the judicial court (tribunal judiciaire) of Paris for awards rendered overseas. The...
This Practice Note examines how arbitral awards are recognised and enforced in South Korea. Note: Korean court judgments cited in this Practice Note are not reported by Lexis Nexis® UK. Arbitral awards enforceable in South Korea Introduced in 1966, the Korean Arbitration Act ( KAA) provides the statutory basis for enforcing arbitral awards in South Korea. The KAA was revised in 1999 to incorporate the 1985 United Nations Commission on International Trade Law ( UNCITRAL) Model Law (the Model Law). On 30 November 2016, further amendments took effect, implementing the 2006 updates to the Model Law. South Korea acceded to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) in 1973. Under the KAA, three categories of awards are enforceable in South Korea ( KAA, arts 37.1, 38–39): foreign arbitral awards to which the New York...
Introduction to the enforcement regime in Guernsey Guernsey’s system for recognising and enforcing arbitral awards rests on statute. The Arbitration ( Guernsey) Law 2016 (the 2016 Law) refreshed the island’s arbitration framework to mirror best-practice jurisdictions, whereas the Arbitration ( Guernsey) Law 1982 (the 1982 Law) governs domestic arbitral proceedings and the enforcement of awards (covering domestic, foreign and New York Convention Awards). The Royal Court has additionally promulgated the Royal Court ( Arbitration) ( Guernsey) Rules 1983 (the Rules), which prescribe the procedure for applications brought under the arbitration legislation. Guernsey is a contracting party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), whose territorial application was extended to the Island in 1985. Under the 2016 Law, recognition and enforcement of awards issued pursuant to an arbitration agreement in the territory of a state that is a New...
This Practice Note examines how Switzerland recognises and enforces international arbitral awards. Under Swiss law, distinct enforcement proceedings before different courts apply depending on whether the award orders payment of a sum of money or requires specific performance (see Articles 335(1)–(2) of the Swiss Code of Civil Procedure ( CCP)). Where an award grants both monetary and non-monetary relief, the successful party must pursue enforcement separately for each category of relief. The rules governing enforcement of monetary and non-monetary relief are outlined below. Only decisions of arbitral tribunals that dispose of all or part of the claims are enforceable in Switzerland, ie partial or final awards on the merits. The duration of enforcement varies with several factors, notably the complexity of the case, and typically ranges from six months to two years. Monetary claims (payment of...
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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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