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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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This Practice Note explains the court procedure for appointing a welfare and/or financial guardian to an adult aged 16 or over in Scotland, covering the process from preparing the application to the making of the order. For guidance on considerations before applying to appoint a welfare guardian or a financial and property guardian, see Practice Notes: Welfare guardianships— Scotland, Financial and property guardianships— Scotland and Adults with Incapacity ( Scotland) Act 2000. The Adults with Incapacity ( Scotland) Act 2000 ( AI( S) A 2000) provides the statutory framework for safeguarding the interests of adults who lack capacity in Scotland. Drafting of the application Initial step All lay guardians seeking financial powers must complete and lodge a Guardian Declaration form together with the application. Style There is no prescribed statutory style for a guardianship order application; commonly it proceeds by summary application for a first order and for any...
CASE HUB ARCHIVED This archived case hub captures the position as at the judgment dated 6 October 2021; it is no longer being updated. See further, timeline, commentary and related/relevant cases. Case facts Outline Case C-882/19, Sumal, SL v Mercedes Benz Trucks España, S. L — a Spanish reference seeking clarification on whether liability for anti-trust damages can be passed down from the parent company to a subsidiary. Latest developments On 6 October 2021, the Court of Justice delivered its judgment, indicating that a victim of an infringement of EU competition law by a parent company may claim compensation from that company’s subsidiary for the loss suffered. For this to apply, the Court of Justice stated the victim must establish that, at the time of the infringement, the two companies formed a single economic unit. Parties Applicant: Sumal, SL ( Sumal) Respondent: Mercedes Benz Trucks España, S. L. ( MB...
This Practice Note outlines the principal factors that an Obligor ought to weigh carefully when choosing an appropriate structure for the issuance of Sukuk, the core documentation linked to those structures, and the key provisions that would ordinarily be incorporated into such documentation. It also explains in brief the forces underpinning the Sukuk market’s prominence in recent years, together with the legislative developments that have driven such growth in the market. For more detail on Sukuk transactions and the background to the transaction structures described below, see Practice Note: The structure and elements of a Sukuk transaction. Form of transactions Sukuk instruments allow holders to obtain direct or indirect ownership of an underlying asset or a pool of assets, while not requiring the payment of interest. They have been defined by the Accounting and Auditing Organisation for Islamic Finance Institutions ( AAOIFI) as...
Shari’a-compliant financing arrangements Shari’a‑compliant financing arrangements, otherwise described as Islamic financing arrangements, can be structured in a number of ways. To cater for the direct tax analysis of Shari’a financing variants, the UK has put in place specific provisions known as the alternative finance arrangement rules. The purpose of these UK rules is to ensure that, for direct tax purposes, a qualifying Shari’a‑compliant financing is taxed in the same manner as an equivalent conventional financing arrangement. Achieving that parity depends upon the arrangements meeting the relevant statutory conditions prescribed for alternative finance arrangements in the applicable legislation. Currently, the regime extends to five distinct categories of financing arrangement. Importantly, the direct tax framework for alternative finance is not limited solely to Islamic financing; non‑ Shari’a structures can, in principle, be brought within its scope as well. Among the five categories is the...
Sukuk Sukuk (singular: ‘sakk’) are a form of Shari’a‑compliant financing, commonly referred to as Islamic bonds or certificates. For further detail, see Practice Note: Sukuk—investment bond arrangements and their UK direct tax treatment— What are sukuk? Where the relevant conditions are met, sukuk can qualify for the UK tax treatment that applies to alternative finance investment bond ( AFIB) arrangements. For the specific rules, see Practice Note: Sukuk—investment bond arrangements and their UK direct tax treatment... Sukuk al ijara Sukuk al ijara is a particular variant of sukuk. In a sukuk al ijara, the asset that the bond‑issuer (the term used in legislation for the sukuk issuer) holds on trust for the sukuk investors (the certificate holders) is typically land. The issuer acquires an interest in that land via a sale and leaseback—the sale and leaseback constitutes the ijara. For more...
Sukuk Singular: ‘sakk’ denotes Shari’a-compliant financing instruments, commonly known as Islamic bonds or certificates. For additional detail, see Practice Notes: The structure and elements of a Sukuk transaction and Sukuk—investment bond arrangements and their UK direct tax treatment— What are sukuk? Where the statutory criteria are satisfied, sukuk can access the UK tax regime that applies to alternative finance investment bond ( AFIB) arrangements under those provisions. For guidance on those rules, see Practice Note: Sukuk—investment bond arrangements and their UK direct tax treatment. Sukuk al ijara represents a specific category of sukuk. In a sukuk al ijara, the asset that the bond-issuer (the legislative term for the sukuk issuer) holds on trust for the sukuk investors (the certificate holders) is frequently land. The issuer obtains an interest in that land via a sale and leaseback; this sale and leaseback...
This Practice Note outlines guidance on the standards expected of accommodation provided by a local housing authority ( LHA) when fulfilling its housing duty under Part VII of the Housing Act 1996 ( HA 1996), including how suitability is evaluated. For details on how an applicant might challenge suitability, see Practice Note: Homelessness review and appeal. Statutory guidance was published on 22 February 2018 to align with the commencement of the Homelessness Reduction Act 2017 on 3 April 2018, and is updated on a regular basis. Throughout this Practice Note, that guidance is termed the ‘ Homelessness code of guidance for local authorities’ (the Code). Discharging the housing duty All accommodation arranged by an LHA in performance of its housing duties under HA 1996, Pt VII must be suitable. This includes accommodation obtained in exercise of an LHA’s interim powers and duties, such as the duty in HA...
Business reorganisations can at times see a company move an ongoing trade into another company under the same ownership. Where specified criteria are satisfied, the provisions in Chapter 1, Part 22 of the Corporation Tax Act 2010 mean the recipient (successor) company effectively replaces the transferor (predecessor) company in relation to trading losses and capital allowances. These provisions are commonly referred to as the rules on successions to a trade, or simply the succession rules. When the relevant tests are fulfilled the succession rules take effect automatically. No claim is required and it is not possible to opt out of the succession rules. This Practice Note considers the tax consequences of shifting a trade without changing its ultimate ownership (for example, a transfer within a group), covering the conditions that must be in place for the succession rules to operate, and their impact on...
This Practice Note explores the changes to succession law introduced by the Succession ( Scotland) Act 2016 ( S( S) A 2016). It provides information on every section of S( S) A 2016 and comments on its effect on the position of the law prior to its enactment. It also notes how those provisions interact with the prior legal position. Effect of divorce, dissolution or annulment on Will— S( S) A 2016, s 1 Where a marriage or civil partnership ends by divorce, dissolution or annulment, any gift or power of appointment conferred by a testator on a former spouse or civil partner, together with any designation of that person as executor or trustee, is revoked. For this to take effect, the deceased must die after the decree of divorce, dissolution or annulment has been obtained and after 1 November 2016. This will not apply where the Will...
Definitive deed and rules—the enabling power The trustees should first confirm that the scheme’s current definitive deed and rules include authority to replace the principal employer in the required way. If no such authority exists, or the present power does not sufficiently allow the proposed substitution, the parties should consider whether the scheme can be amended to introduce an appropriate power. Trustees’ considerations Trustees, in particular, should not simply exercise any power vested in them (or give consent, where relevant) to admit a new principal employer in place of the departing principal employer. Where the scheme is a defined benefit arrangement, further matters will need to be assessed. Trust law and employer covenant issues Trustees must have regard to their duties under trust law and should first review all relevant circumstances, including: the employer covenant of the proposed principal employer. Specifically, will the incoming employer offer a...
The following key resources are available, delivering practical commentary, legislation, rules and guidance for immigration lawyers working in private practice or in-house. Please be aware that the listed titles are accessible only with the appropriate subscription(s). Commentary These materials are of general interest to lawyers who need to research the relevant subject areas: Macdonald’s Immigration Law and Practice — The foremost text covering every dimension of immigration, asylum and nationality law and practice, with analysis, supporting legislation and case law Fransman’s British Nationality Law — An authoritative commentary on British nationality law, alongside connected immigration and human rights matters Journal of Immigration, Asylum and Nationality Law......
Practice Note Under the Proceeds of Crime Act 2002 ( POCA 2002) and the Terrorism Act 2000 ( TA 2000), you must report knowledge or suspicions of money laundering and terrorist financing to the National Crime Agency ( NCA) by submitting a Suspicious Activity Report ( SAR). Failure to report attracts significant criminal penalties. A SAR can be: an internal SAR to the organisation’s nominated officer, or an external SAR to the NCA This Practice Note sets out practical guidance for the nominated officer on making an external SAR to the NCA and on obtaining a defence or consent to carry out a prohibited act (that is, to proceed with a matter you know or suspect involves money laundering or terrorist financing). See also Practice Note: Reporting suspicions of money laundering and terrorist financing for more detailed information on the law governing the SARs...
Sections 7 and 8 of the Data Protection Act 1998 ( DPA 1998) grant a data subject the right to obtain personal data held by a data controller. A request for such information is termed a data subject access request, commonly abbreviated to ‘ SAR’ or ‘ DSAR’. This Practice Note reviews SARs and the considerations when dealing with them, covering procedural and administrative steps, statutory timeframes for replies, and best practice drawn from the Information Commissioner’s subject access code of practice. A data subject is a person to whom personal data relate—of any age or nationality under the DPA 1998—but they must be alive to qualify. For clarification of core terms used in this Practice Note, including personal data, data subject and data controller, see Practice Note: Key definitions under the DPA 1998. Changes as a result of the General Data...
ARCHIVED: This archived Practice Note outlines the data protection framework in force prior to 25 May 2018 and describes the position under the Data Protection Act 1998 ( DPA 1998). It is supplied for background purposes only and is no longer updated. Sections 7 and 8 of the DPA 1998 define a data subject’s right to obtain access to personal data held by a data controller. A request for such information is called a subject access request, often abbreviated to ‘ SAR’ or ‘ DSAR’. When responding to any SAR, the first step is to verify that the requester has satisfied the relevant procedural requirements. For further detail, see Practice Note: Subject access requests under the DPA 1998. This Practice Note considers the narrow exemptions within the DPA 1998 that allow a data controller to refuse disclosure of personal data to a data subject who has made a...
Practice Note This Practice Note aims to guide sub-contractors in identifying early warning signs of contractor insolvency and the practical, proactive steps a sub-contractor may take to safeguard itself in advance. If the main contractor has already become insolvent, consult Checklist: Sub-contractor steps to take if contractor becomes insolvent—checklist accordingly, promptly thereafter......
This Practice Note explores the treatment of sub-contracting across the 1999 FIDIC Red, Yellow and Silver Books, together with the Gold Book 2008 and the Pink Book 2010. It also summarises the principal aspects of two FIDIC standard form sub-contracts: Conditions of Subcontract for Construction 2011, intended for the Red Book 1999 and, with certain amendments, the Pink Book 2010 (the Red Book sub-contract) Conditions of Subcontract for Plant and Design- Build 2019, intended for the Yellow Book 1999 (the Yellow Book sub-contract) Despite its 2019 publication, the Yellow Book sub-contract is designed for the 1999 Yellow Book main contract—not the 2017 edition. For guidance on sub-contracting under the 2017 editions of the Red, Yellow and Silver Books, refer to Practice Note: FIDIC contracts...
Among the primary issues for any developer procuring works in the UK is selecting the contractor. The chosen procurement route will in turn ultimately dictate precisely how much risk and responsibility the contractor assumes. Yet, whatever the procurement approach, a common pattern in the UK construction sector is that the contractor typically sub-contracts out discrete parts (sometimes the entirety) of the duties it has accepted. The developer, as employer, and the contractor then enter a detailed, formal building contract (the main contract) that captures their agreed risk allocation. That contract also specifies, with clarity, the exact scope of works and design the employer expects the contractor to perform and stand behind, in exchange for the contract sum. Unless the contractor is engaged for bespoke expertise or attributes (situations in which sub-contracting would be strictly barred), it is usual practice for the...
The prime/subcontractor model To deliver a comprehensive IT portfolio to their clients, technology providers may engage additional specialist suppliers to bolster what they can supply. In such cases, the main provider is commonly called the prime contractor, while any third parties it appoints to perform elements of the contracted services are described as subcontractors. Under this model, the prime contractor remains contractually, financially and operationally responsible for delivering the services under its agreement with the customer (the prime contract), whether delivery is by itself or through a subcontractor. Accordingly, if a subcontractor’s act or omission causes a breach and loss ensues, the customer may (subject to the contract) pursue the prime contractor for the resulting damages arising from that default. For this reason, primes frequently seek to include a risk premium on top of the overhead and profit margin they apply to the...
This Practice Note is part of the Lexis+® UK Corporate private equity buyout transaction toolkit At the outset of a private equity buyout ( MBO), beyond price and equity stakes, the key question for the parties and their advisers is the deal structure. In most cases, a newly formed company established by the investor (a newco) will either: purchase all of the issued share capital of the target (a share purchase), or acquire the business as a going concern together with certain assets (an asset purchase). On completion, the investors and the managers (ie management members of the target company/business) will subscribe for their respective equity interests in the newco, or in a holding company of the newco, depending on the proposed equity structure. See Practice Notes: Structure of a buy-out and Stages of a...
Practice Note This Practice Note explores prevalent approaches to motivating suppliers within outsourcing engagements. It examines service credits, earn back, service bonuses, gain sharing and results-based contracting. It also looks at general oversight tools such as step-in, benchmarking and audit rights. Most outsourcing agreements include measures intended to drive suppliers by either penalising substandard performance or rewarding outcomes that surpass the specified benchmark. This Practice Note focuses on the following common methods of supplier incentivisation: Service credits, earnback and service bonuses Late delivery payments and early delivery bonuses Gainsharing Results-based contracting Oversight arrangements These levers form only part of a wider context for encouraging supplier performance. Outsourcing deals are typically long-term and rely on a continuing relationship between the parties. Accordingly, the customer will often recognise that: a measured, balanced stance is prudent, avoiding efforts to shift all risks onto the...
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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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