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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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ARCHIVED: This archived Practice Note considers the position in relation to retained EU law ( REUL) in the employment field to 31 December 2023. After that date, the position altered substantially when key elements of the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023) took effect on 1 January 2024. For further guidance, see Retained EU Law ( Revocation and Reform) Act 2023 below, and Practice Note: Retained EU law ( Revocation and Reform) Act 2023—impact on employment law. Before exit day (31 January 2020), EU law operated in the UK via the European Communities Act 1972 ( ECA 1972). On exit day, the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) repealed ECA 1972, subject to savings introduced by the European Union ( Withdrawal Agreement) Act 2020 ( EU( WA) A 2020), to give effect to the...
ARCHIVED: This archived Practice Note reviews the catalogue of retained European Union laws identified on the UK government’s Retained EU Law dashboard and most pertinent to the construction industry. Such measures may subsequently be revised, repealed or replaced in due course under the Retained EU Law ( Revocation and Reforms) Bill (also called the ‘ Brexit Freedoms Bill’)... Background Before the UK left the EU on 31 January 2020, EU law applied domestically through the European Communities Act 1972 ( ECA 1972) and a range of specific Acts or regulations/statutory instruments enacted by Parliament to give effect to that law... On 31 January 2020, the ECA 1972 was repealed by the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) and many EU-derived rules ceased to apply, subject to savings introduced by the European Union ( Withdrawal Agreement) Act 2020 ( EU( WA) A 2020) and a...
Retained EU Law ( Revocation and Reform) Act 2023 The Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023) overhauls the framework set by the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018). It has a marked effect on the status and treatment of what had been retained EU law ( REUL); from 1 January 2024, by virtue of the Act, this is recognised as assimilated law. The legislation also confers a broad set of powers enabling the further amendment, repeal, and substitution of assimilated law over time. REUL( RR) A 2023 came into force in part on 29 June 2023, with additional provisions taking effect on 29 August 2023, and the remaining elements commencing on appointment. It was brought into force on 1 January 2024, save for section 6 ( Role of courts). For...
Key concepts REUL( RR) A 2023 This Practice Note considers how the Retained EU law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023) affects employment law. At a high level, the immediate effect has been limited, because the timetable for the current proposed employment law reforms allowed advisers and employers to prepare for roll‑out. Looking ahead, however, the legislation sets the stage for volatility, as REUL( RR) A 2023 permits amendment, alteration, replacement or restatement of retained EU law ( REUL). Crucially, the revised approach to interpreting REUL, together with wider scope for courts to depart from it, raises the likelihood that uncertainty will persist until lengthy litigation applies the new tests and procedures... Since 1 January 2024, REUL that persists is generally labelled ‘assimilated law’, in line with REUL( RR) A 2023, s 5 (see: Assimilated law below, and Practice Note:...
Introduction This Practice Note examines, in particular, the requirements for securing retained and derivative rights of residence under relevant EU free movement law in the state of residence (the host Member State). The rules governing retention of a right of residence in the host Member State stem from the rights laid down in Directive 2004/38/ EC (the Citizens’ Directive). The rules for obtaining a derivative right of residence in the host Member State arise from the relevant tests under EU law. When this Practice Note uses the expression ‘ EU nationals’, it means nationals of EU Member States. Individuals from the European Economic Area ( Norway, Iceland and Lichtenstein) likewise benefit from EU free movement law pursuant to the Citizens’ Directive. Accordingly, references to EU nationals within this Practice Note should be understood as also covering EEA nationals. Switzerland is a party to the...
Introduction to company voluntary arrangements ( CVAs) A CVA offers a lifeline to a company under financial strain by enabling it to reorganise its liabilities. Unlike other insolvency routes, the directors retain control and the business broadly trades as usual, subject to oversight by an insolvency practitioner (the Supervisor). A CVA constitutes a statutory agreement between the company and its creditors, designed to secure a better outcome than a move into a formal insolvency process. Funding for the proposals may take the form of a single lump‑sum contribution or a fixed timetable of instalments across a set term (typically 1–5 years). Where 75% or more in value of the company’s creditors approve the proposals, they become binding on all unsecured creditors, including those who (1) opposed them and (2) were entitled to vote but did not receive notice of the decision...
CASE HUB ARCHIVED This case hub is archived and records the position as at the date of the judgment of 11 July 2019; it is no longer maintained. Note—appeals were lodged before the Court of Justice in Cases C-702/19 and C-70/19 P. For further detail, consult the timeline, commentary, and related or relevant cases. Case facts Outline An action was brought before the General Court seeking annulment and/or reductions in the level of the fines imposed by the Commission’s decision of 24 June 2015, which identified five infringements of Article 101 TFEU and imposed total fines amounting to €115.865m for participation in the retail food packaging trays cartel. Outcome On 11 July 2019, the General Court delivered its judgments, in which it: upheld one plea advanced by CCPL. In the initial decision, CCPL received a 25% reduction owing to its ability to pay. CCPL...
Types of valuation for R& I lawyers Pinpointing where the value breaks shapes any restructuring and dictates who occupies a place at the negotiating table (see Practice Notes: Where the value breaks and negotiating strength and Blocking majorities). Different creditor constituencies may commission their own valuations because these figures drive their eventual recoveries. With no statute prescribing a single methodology, parties must lean on intermittent court guidance. That uncertainty predictably spurs creditor challenges, as stakeholders select valuations that support the most favourable result for them. As a rule, using a number of techniques to produce a valuation range is sensible. In practice, applying more than one method helps triangulate the value range. Going-concern basis versus liquidation basis versus indicative bids A going concern basis (also called enterprise or firm value) assumes the debtor company continues to trade. The three principal approaches are: ...
This Practice Note is currently maintained internally. Reasons for restructuring a trust A trust might be reorganised for several aims, such as to: establish an interest in possession for one or multiple beneficiaries narrow the class of beneficiaries set up distinct trusts for named beneficiaries or for a defined class form one or more sub-funds appoint alternative trustees for a segment of the trust fund broaden the trustees’ administrative powers Restructuring may proceed through one or more of these routes: using a statutory power, or an express power within the trust deed or instrument applying to the court to vary the trust’s terms a beneficiary disposing of, or disclaiming, a vested or contingent interest Exercise of a power This is generally the most straightforward and effective route to restructuring, as it can (if the trust’s terms permit) be carried out quickly and without any action required from a beneficiary. The terms of the trust...
The Corporate Insolvency and Governance Act 2020 ( CIGA 2020) introduced a new restructuring device: the restructuring plan under Part 26A of the Companies Act 2006 (see Practice Note: Part 26A restructuring plans). Although it broadly follows the established schemes of arrangement process, there are significant differences, including the introduction of cross-class cram down ( CCCD) (see Checklist: Differences between restructuring plans, schemes of arrangement, and CVAs and Practice Note: Cross- Class Cram Down under a Part 26A restructuring plan). For an in-depth review of key metrics from 2024 RPs—covering instances where CCCD has been applied—and insights from leading restructuring practitioners, see News Analysis: Market Insights Trend Report—trends in Part 26A restructuring plans in 2024. Below we consider some frequently asked questions ( FAQs) on the restructuring plan. Can restructuring plans be used for small to medium enterprises (...
This Practice Note refers to: the Companies Act 2006 ( CA 2006) the Insolvency Act 1986 ( IA 1986) What is a restructuring plan? A restructuring plan ( RP) is a court-approved settlement between a company and its creditors and/or members. It was created as a fresh rescue mechanism by the Corporate Insolvency and Governance Act 2020 ( CIGA 2020). Under CIGA 2020, s 7 and Sch 9, CA 2006, Pt 26A— Arrangements and Reconstructions for Companies in Financial Difficulty—was introduced. RPs have much in common with schemes of arrangement under CA 2006, Pt 26. A key differentiator, however, is the cross class cram down ( CCCD), allowing a class of creditors or members to be bound by the plan even without a favourable vote from that class, where specified tests are met. For insights into metrics from RPs reviewed by the courts in 2024,...
Employers may seek to reshape a defined benefit pension scheme for several reasons, including keeping the scheme aligned with recent legislative and case law changes, aiming to harmonise pension provision across the relevant corporate group, and seeking to control or reduce future pension spend. Types of scheme restructuring Typical approaches to restructuring defined benefit arrangements include: adjusting the scheme's accrual rate for future service (eg from 1/60th of final salary per year to 1/80th) shifting from final salary to career average accrual rates running incentive exercises (eg enhanced transfer offers) closing to new joiners ending future accrual (with or without keeping a link to final salary) consolidating schemes buying out members' benefits For more information, see: Pension scheme incentive exercises Changing from final salary to career average accrual rates Scheme...
This Practice Note explores how restrictive covenants are interpreted, and considers the sense of commonly used phrases appearing in such covenants, discussing their typical usage. Approach to construction of covenants Restrictive covenants are treated in the same manner as any other contractual provision. The court’s task is to determine what a reasonable person, armed with all background knowledge available to the parties, would understand the contractual language to convey in context. For more detailed guidance, see Practice Note: Contract interpretation—the guiding principles. It is also essential to confirm that the covenant is enforceable as between the relevant parties. For further guidance, see Practice Note: Restrictive covenants—nature and characteristics. As each instrument is distinctive in its precise wording and factual context, past judicial decisions on similar phrases are not a dependable aid to construction in many cases. Subject to that qualification, the remainder of this Practice Note...
Restrictive covenants are often attached when land is subdivided, so that any subsequent development needs approval from: the original seller, or the original seller and their successors in title Whose consent is required? Covenants commonly state that the purchaser and their successors in title must obtain approval of plans before any development proceeds. At times, the consent requirement is limited to the original seller; in that event, if that person no longer exists (eg where an individual has died, or a company has been wound up or liquidated), the covenant may cease to be enforceable. Although some early cases suggested such covenants became absolute, in Crest Nicholson, Neuberger J (as he then was) held that a covenant requiring plans to be submitted for approval to the vendor company was discharged when that company ceased to exist, and the Court of Appeal later...
This Practice Note reviews the provisions of the Protection of Trading Interests Act 1980 ( PTIA 1980) that limit the enforcement of certain foreign judgments. Those provisions operate as an exception to the doctrine of obligation or comity, under which the courts of England and Wales would ordinarily recognise a competent foreign court’s decision imposing a liability on a defendant to pay the adjudged sum. Background to the act The PTIA 1980 was prompted by UK opposition to the US approach to anti-trust enforcement, where courts may award multiple damages. When introducing the legislation, the Secretary of State for Trade stated that it was ‘to reassert and reinforce the defences of the UK against attempts by other countries to enforce their economic and commercial policies unilaterally on us’. Remit of the act As to scope, the act applies to any judgment delivered by an overseas court that...
The provisions governing directors and employees for restricted securities set out in Chapter 2, Part 7 of the Income Tax ( Earnings and Pensions) Act 2003 ( ITEPA 2003) are very commonly encountered in day-to-day practice on corporate transactions involving management. In broad terms, restricted securities are employment-related securities which: at the time of acquisition are subject to recognisable restrictions that depress the market value of the securities Such restrictions are typically intended to incentivise an employee to remain with the employing company and to meet certain performance conditions. Either the securities themselves can be restricted (i.e. restricted securities) or the restriction can apply to the employee’s interest in those securities (a restricted interest in securities). The restrictions may affect an employee’s ability to retain the shares (for example, the articles of association may require an employee to transfer shares at the...
The procedure for making joint restricted securities elections is the same regardless of whether the election is made under sections 425(3), 430 or 431 of the Income Tax ( Earnings and Pensions) Act 2003 ( ITEPA 2003). For an election to take effect, it must satisfy all of the following: Be executed by both the employee (or director or other office-holder) and the employer. Note: it is the employer, not the company issuing or transferring the employment-related securities (if different), that must enter into the election with the employee. Use an approved form (see below). Be completed within 14 days of: the acquisition (for elections under ITEPA 2003, s 425(3) or s 431), or the chargeable event (for an election under ITEPA 2003, s 430). ...
THIS PRACTICE NOTE ONLY APPLIES TO DEFINED BENEFIT OCCUPATIONAL PENSION SCHEMES The Pensions Regulator's moral hazard powers The Pensions Act 2004 ( Pe A 2004) granted the then newly established Pensions Regulator (the Regulator) a suite of powers. The most novel and consequential among these were the moral hazard measures in ss 38–56 of the Pe A 2004. These moral hazard powers allow the Regulator to tackle attempts to sidestep responsibility for pension funding commitments and, ultimately, to limit the exposure of the Pension Protection Fund ( PPF). In particular situations, the Regulator may even look beyond corporate structures to attribute pension liabilities to third parties connected to, or associated with, a scheme’s sponsoring employer. The Regulator’s moral hazard powers may take the form of: a contribution notice, requiring a specified sum to be paid into a pension scheme a financial support...
Reviewed by Professor Richard Macrory The Regulatory Enforcement and Sanctions Act 2008 ( RESA 2008) empowered regulators to address offences through six civil sanctions rather than pursuing prosecution. In 2010, the Environment Agency ( EA) and Natural England ( NE) received these powers for specified environmental breaches. In 2015, the regime widened when the EA was authorised to accept enforcement undertakings for environmental permitting offences. The Environmental Civil Sanctions ( England) Order 2010, SI 2010/1157 applies in England, and the Environmental Civil Sanctions ( Wales) Order 2010, SI 2010/1821 applies in Wales. In both, Schedule 5 sets out which sanctions are available for each offence. The EA commenced using its powers on 4 January 2011. NE began exercising its powers from 3 January 2012. From 1 April 2013, Natural Resources Wales ( NRW) assumed responsibility for enforcing environmental civil sanctions in Wales. 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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