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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 is based on an original work by Ben Sheldrick of Magrath Sheldrick LLP. Running equitable recruitment procedures helps employers curb the chance of discrimination claims succeeding against them. No statute or guidance stops a business selecting the strongest candidate for the role; however, discriminating against an applicant at any point in the hiring journey is unlawful. Employers should remember that each candidate deserves fair treatment at every step of the process. Matters of immigration and employment law that concern illegal working ought to be handled in tandem at all stages of the employment relationship, from hiring through to dismissal. Accordingly, employers must ensure HR paperwork, policies and procedures address these points from the beginning. Whether an organisation relies on a specialist personnel or HR team, or delegates hiring duties to line managers and supervisors, everyone involved in...
This Practice Note explores the legal and practical questions that can arise when an employer (called in this note the 'new employer') seeks to hire an individual or, in a team move scenario, a group of individuals, from a competitor employer (described in this note as the 'former employer' or 'current employer'). It considers how to minimise the potential risk of legal liability for economic torts, including: inducing a breach of contract conspiracy (by unlawful and lawful means) unlawful interference with business as well as other protective action. It sets out what action to take where the employee is in breach. Privilege, including common interest privilege, is assessed in this note. Litigation and settlement strategy is addressed as well. The legal framework In employee competition disputes, the basis of litigation will be the express and implied terms of the employment contract between the...
This Practice Note examines damages for breach of contract where the remedy sought comprises wasted expenditure, diverted management time and litigation costs arising from the breach. These are a form of pecuniary loss. For a broader overview of contractual damages, see Practice Note: Contractual damages—general principles; which sets out Baron Parke’s dicta in Robinson v Harman on the compensatory purpose of damages for breach, namely that an innocent party is entitled to be put, as to money, in the position they would have occupied had the contract been fulfilled, as if the agreement had been performed. For focused guidance on recovering losses for breach of contract, see the following Practice Notes set out below: Contractual damages—pecuniary losses (expectation, reliance or gain-based financial losses) Contractual damages—non-pecuniary losses (non-financial losses) Be aware that contracts frequently attempt to limit or exclude categories of loss recoverable in any given case for...
Trustees should be alert to circumstances that can trigger a debt under section 75 of the Pensions Act 1995, so they understand: when such a liability crystallises, and when they must act to have it assessed and recovered They have a general obligation to reclaim their scheme’s assets. If they fail to act properly, and without undue delay, to recover an outstanding sum, this may amount to a breach of trust and could expose them to claims for any loss suffered. For more on disputes that members may bring under occupational or personal pension schemes, see Practice Note: Pension disputes—avenues available to scheme members; and for trustee protections, see Practice Note: Trustee liability and protection in pensions. When does a section 75 debt arise? In summary, a section 75 debt becomes payable to an underfunded defined benefit scheme when: the scheme is wound up the employer is insolvent for section 75...
In most Scottish criminal matters, defence representatives usually obtain material through disclosure provided by the Crown, in line with duties under the Criminal Justice and Licensing ( Scotland) Act 2010 ( CJL( S) A 2010). For guidance on such material, refer to Practice Note: Disclosure of evidence in Scottish criminal proceedings. However, some situations call for information retained by the Crown that falls outwith its statutory disclosure duties, that is, material the Crown holds but is not obliged by the CJL( S) A 2010 to reveal to the defence. At times, the necessary information sits with a third party; documents or records may lie with external organisations or individuals rather than the Crown. This Practice Note sets out how such material can be recovered, and describes the mechanisms available to secure access in those...
The Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995) Governs the ongoing liability of former tenants and their guarantors for rent and service charge after a lease has been assigned. This Practice Note addresses: when arrears may be pursued from a former tenant or their guarantor the notice steps a landlord must follow to recover arrears from a former tenant or their guarantor (a ‘s 17 notice’) the entitlement to, and terms of, an overriding lease, together with the application process key considerations for landlords before issuing a s 17 notice Landlords must serve notice promptly for any ‘fixed charge’ that has fallen due, or they forfeit the right to recover it. After payment, former tenants and their guarantors may request an overriding lease. LT( C) A 1995, s 17 was introduced to tackle a significant issue faced by former tenants and guarantors during the early 1990s...
Ministers may ‘recover’ planning appeals for their own determination. In such cases, rather than the inspector issuing the final decision, they prepare a report with a recommendation on how the appeal ought to be decided. The Secretary of State/ Welsh Ministers then reach the decision on the appeal, taking the inspector’s advice into account. Do not confuse recovery with ‘call-in’, where ministers take over the original application from the local authority. See Practice Note: Call-in by the Secretary of State. When does recovery take place? Recovery can happen at any point in the appeal up to the moment the inspector issues their decision, including after a site visit, a hearing, or an inquiry has already occurred. What appeals can the Secretary of State/ Welsh Ministers recover? The Secretary of State/ Welsh Ministers have set out criteria describing the kinds of appeals they may choose to recover for their own...
This FLASHCARD is designed to help you take in and retrieve the essential points on the recognition of UK central counterparties ( CCPs) under Regulation ( EU) 648/2012 ( EU EMIR). How did Brexit affect the EU market for clearing services? Before Brexit, three UK CCPs— London Clearing House ( LCH), LME Clear and ICE Clear Europe—held a dominant role in the EU market for derivatives clearing. As at June 2017, it was estimated that UK CCPs cleared roughly 90% of euro-denominated interest rate swaps for euro area counterparties, and 40% of their euro-denominated credit default swaps. When the implementation period ended on 31 December 2020, UK CCPs were no longer under EU supervision and became third country CCPs for the purposes of EU EMIR. Article 25(1) of EU EMIR provides that a......
This Practice Note This Practice Note sets out the particular rights granted to an independent trade union once an employer has recognised it for the purpose of collective bargaining, such as (but not limited to): the entitlement to employer disclosure of information for collective bargaining the right for union officials, learning representatives of the union and other union members to take time away from work for trade union duties and/or activities the right to be consulted in respect of collective redundancies rights to information and consultation in connection with the transfer of undertakings the right to information and consultation on health and safety matters information and consultation rights relating to pension schemes rights in relation to training This Practice Note explores in greater detail the entitlement to disclosure of information for collective bargaining and the rights...
ARCHIVED: This archived Practice Note explores the crucial question of enforcing SICC judgments. It reviews the effect of, and interaction between, the following instruments: Hague Convention on the Choice of Court Agreements (2005 Hague Convention) Singapore Choice of Court Agreements Act 2016 ( CCAA 2016) Reciprocal Enforcement of Commonwealth Judgments Act ( Cap 264) ( RECJA) Reciprocal Enforcement of Foreign Judgments Act ( Cap 265) ( REFJA) It is not maintained and is supplied for background only. All references are to Singapore rules and legislation, with links provided in the Related documents section - external links - and in Our Lawyer Team Recommends. A major reason arbitration remains popular is the relative simplicity of cross-border enforcement afforded by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 ( New York Convention)....
The regime for recognising and enforcing international arbitral awards in Jersey sits within the Arbitration ( Jersey) Law 1998, as amended (the Arbitration Law). Parts 3 and 4 enable enforcement of awards made under: the Protocol on Arbitration Clauses, 24 September 1923 (the Protocol) the Geneva Convention on Foreign Arbitral Awards, 26 September 1927 (the Geneva Convention) the New York Convention, 10 June 1958 (the New York Convention) In essence, where an arbitration agreement falls within any of the Protocol, Geneva Convention or New York Convention, and the requisite conditions are met, the award may be enforced by the Royal Court of Jersey (the Court) in the same way as a judgment or order of that Court to equivalent effect. Domestic awards The Arbitration Law differentiates between domestic and non-domestic awards. Part 2 governs domestic awards arising from arbitration...
This Practice Note looks at the framework for recognising and enforcing international arbitral awards in Türkiye and, where appropriate, draws on case law... Applicable legislation Türkiye’s arbitration system, together with the rules on recognition and enforcement, is founded on the United Nations Commission on International Trade Law ( UNCITRAL) Model Law on International Commercial Arbitration 1985. The two principal instruments governing recognition and enforcement are the Convention on the Recognition and Enforcement of Arbitral Awards (the New York Convention) and the International Private and Procedural Law ( IPL) No. 5718. The New York Convention took effect in Türkiye under Law No. 3731 in 1991 and since then has applied to recognition and enforcement applications brought in Türkiye. As an international treaty, the New York Convention prevails over domestic legislation pursuant to Article 90 of the Turkish Constitution. Türkiye has confined the New York...
Rationale for adopting UNCITRAL model laws The government is eager for England to be among the first jurisdictions to explore implementation, as this would demonstrate its continuing commitment to mutual co‑operation and international best practice. Global co‑operation enables international businesses to choose to restructure here, confident this will deliver the best outcome for creditors, shareholders and management, and that results will be recognised both in their local courts and around the world. Following Brexit, the Insolvency Service wants England to remain well placed to continue to lead in this area... The Insolvency Service highlights these advantages in adopting UN Commission on International Trade Law ( UNCITRAL) Model laws: co‑operation between nations on insolvency matters is typically mutually beneficial preventing unnecessary insolvency proceedings and the piecemeal break‑up of viable businesses preserves value throughout the process, increases returns to creditors and protects...
In Germany, the framework for recognising and enforcing awards of the International Centre for Settlement of Investment Disputes is set by Chapter IV, section 6 of the ICSID Convention of 18 March 1965 (articles 53–55), together with the German statute implementing that treaty, the Investitionsstreitbeilegungsgesetz ( Inv Streit Beil G). The 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards is inapplicable. Under Inv Streit Beil G, article 2(1), an ICSID award may only be enforced after a German court has confirmed its enforceability. So far, there are no reported German court rulings addressing recognition and enforcement of ICSID awards. German law differentiates between the stage of declaring an award enforceable (“ Recognition”) and the subsequent stage of carrying out enforcement (“...
Note: Brazil judgments below are not reported by Lexis Nexis®. What constitutes a foreign arbitral award in Brazil? The Brazilian Arbitration Act ( Federal Law No. 9,307/96, ( BAA)) identifies two categories of arbitral awards: domestic and foreign. Foreign awards are those issued outside Brazil ( BAA, art 34, para 1) and must undergo recognition before they can be enforced locally. Domestic awards are those delivered within Brazil and are enforceable as a domestic judgment without any need for court confirmation. Accordingly, for the recognition and enforcement of foreign awards, the arbitral seat is pivotal in determining where the award is rendered and whether prior confirmation is required in Brazil. How to enforce a foreign arbitral award in Brazil To enforce a foreign arbitral award in Brazil, it must first be submitted for recognition before the Brazilian Superior Court of Justice ( Superior Tribunal de Justiça, ( STJ)). The...
ARCHIVED : This Practice Note is archived and is no longer maintained. Regulation ( EU) No 1215/2012, the recast Brussels I, brought significant alterations to how judgments from other EU Member States are enforced in England under the new framework. These reforms shift the onus for having a judgment from one EU Member State, the State of Origin, acknowledged or enforced in another, the State of Enforcement, away from the party seeking recognition or enforcement there. Instead, the responsibility now lies with the party opposing recognition or enforcement to demonstrate one of the narrow refusal grounds. At the heart of these updates is removing the need to obtain a declaration of enforceability. Under Regulation ( EC) 44/2001, Brussels I, a party seeking to enforce a judgment from elsewhere in the EU had to obtain a declaration in the State of...
This Practice Note explores how domestic and overseas arbitral awards are recognised and enforced in the Cayman Islands. For a brief introduction to the Cayman arbitration framework, including the Arbitration Act 2012 (the 2012 Act), see Practice Note: Stay of court proceedings and anti-suit injunctions in support of arbitration in the Cayman Islands—an introduction to the Cayman Islands arbitration regime. Note: the judgments of the Cayman Islands courts mentioned in this Practice Note are not reported by Lexis Nexis® UK. The regime for the enforcement of arbitral awards in the Cayman Islands The UK government extended the operation of the 1958 New York Convention on the Enforcement of Arbitral Awards (the New York Convention) to the Cayman Islands by notifying the Secretary‑ General of the United Nations, with effect from 24 February 1981. The notification included a reservation that the Cayman Islands would apply the New York...
The Mauritian legal system Mauritius operates a mixed legal order, blending French civil law heritage with British common law traditions. It exhibits a dual structure: procedures in both criminal and civil proceedings are largely English in origin, while much of the substantive framework derives from the French Napoleonic Code. The jurisdiction therefore embodies both civil law and common law traits, reshaped to suit domestic requirements and yielding a distinctive body of Mauritian law. This duality appears in the separate regimes applicable to domestic and international arbitration. Rules for domestic arbitration are set out in the Civil Procedure Code 1808 ( Code de Procédure Civile) ( CPC), drawn from a French version, whereas international arbitration falls under the International Arbitration Act 2008 ( IAA 2008), modelled on the UNCITRAL Model Law on International Commercial Arbitration (the Model Law). For further detail on...
This Practice Note explores the recognition and enforcement of arbitral awards under Austrian law Note The decisions of the Austrian Supreme Court ( Oberster Gerichtshof) ( OGH) mentioned below are not reported by Lexis Nexis®. Austria’s regime for recognising and enforcing foreign arbitral awards consists of national statutes, international treaties, and bilateral and multilateral accords. Two domestic statutes are central: the Austrian Enforcement Act ( AEA) and the Austrian Code of Civil Procedure ( ACCP), which sets out Austrian arbitration provisions. Section 614 ACCP governs the recognition and declaration of enforceability of foreign arbitral awards, meaning awards issued by tribunals seated outside Austria: recognition and the declaration of enforceability of foreign arbitral awards proceed under the Enforcement Act ( Exekutionsordnung), unless international law or EU legal instruments provide otherwise. The formal requirements for the arbitration agreement are also satisfied if the agreement complies both with section 583 and with the...
E& W Brussels I—recognition of judgments [ Archived] ARCHIVED: This Practice Note is archived and no longer maintained. It offers guidance on seeking recognition of a judgment in the courts of England and Wales for enforcement under Regulation ( EC) 44/2001, Brussels I. A judgment is only capable of recognition and enforcement under that regime where proceedings were commenced between 1 March 2002 and 9 January 2015. If this guidance does not apply, see: Which regime applies to enforce a foreign judgment?—checklist. The Note examines Articles 32–37 of Regulation ( EC) 44/2001 concerning the recognition of judgments, settlements, or authentic instruments. It summarises the general rules, then considers whether a formal application for recognition is required. It addresses applications for recognition both in England and Wales and in an EU Member State. It also explores, in some detail, the possible bases for refusing...
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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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