Legal Practice Notes

Context The Community Infrastructure Levy ( CIL) is a tariff imposed by charging authorities on development. In most instances, the charging authority is the local planning authority ( LPA) for the area. The legal framework for CIL sits in Part 11 of the Planning Act 2008 ( PA 2008), which permits the Secretary of State to make regulations to impose CIL. Those powers were exercised through the Community Infrastructure Levy Regulations 2010 ( CIL Regulations), SI 2010/948. CIL is applied by ‘charging authorities’ in relation to development of land within their boundaries. PA 2008, s 206 states that an LPA is the charging authority for its area, with some exceptions (see Practice Note: Community Infrastructure Levy ( CIL)—who administers CIL, when does CIL arise, and when and by whom must CIL be paid). Revenue raised must be used to fund the provision,...

Practice Note Damage and disturbance arising from construction works are commonly pursued by way of claims in trespass, nuisance, or negligence. This Practice Note succinctly outlines the scope for an alternative, or supplementary, route under the Protection from Harassment Act 1997 ( PHA 1997). Jones v Ruth demonstrates these avenues, including the availability of a statutory harassment claim where those undertaking the works behave aggressively and respond to complaints in an unco-operative manner. The dispute centred on neighbouring properties and building operations that extended for four years beyond expectation. The works, undertaken by Mr and Mrs Ruth, resulted in harm to the adjoining property, excessive noise and pollution, and deprived their neighbours of the quiet enjoyment and use of their garden throughout that period......

Introduction This Practice Note serves as a negotiation handbook for IT contracting, spanning matters linked to IT services—ranging from support through to total outsourcing—as well as software licensing and/or hardware procurement, and anything that sits between those ends. It outlines headline positions across roughly 30 of the most frequently contested points, and proposes possible middle-ground solutions and principal factors to weigh, taking into account the contract’s scope, the parties’ comparative bargaining leverage, and whether the reader represents customer or supplier. Designed as a high-level overview, it encourages readers to assess what is required for the specifics of any given transaction. Where appropriate, it signposts other Practice Notes for added detail. Its focus is limited to business-to-business dealings. For a broader look at core negotiation themes in services agreements generally, rather than IT-specific arrangements, consult Practice Note: Negotiation...

This Practice Note is a practical ‘how to’ on negotiating an influencer agreement. It summarises what counts as an influencer, why influencers are engaged for advertising, how influencer advertising is regulated, and provides an overview of the key practical and legal issues, as well as the principal points to consider when negotiating an influencer agreement. What is an influencer? The Advertising Standards Authority ( ASA) regards an ‘influencer’ as any human, animal or virtually created persona active on any online social media platform. This includes platforms such as: Facebook Instagram Snapchat Tik Tok Twitch You Tube and many others. Although labels differ across platforms or regulatory frameworks, ie ‘bloggers’, ‘vloggers’, ‘streamers’ or ‘content creators’, all fall within the scope of this ‘how to’ guide. In the UK, content is treated as an influencer ‘endorsement’ or advertising where an...

This Practice Note sits within the Data Protection Negotiation Guide (the Guide). This section of the Guide covers negotiating clauses about prior consultation with the Information Commissioner’s Office ( ICO) in controller–processor arrangements governed by the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR). For a primer on the Guide, see Practice Note: Data protection negotiation guide—controller: processor—introduction. This Practice Note makes use of several standard abbreviations, which are defined in that introduction. As set out in Practice Note: Data protection negotiation guide—controller: processor—introduction: the parties may, as a commercial matter, apportion between them the costs and expenses of carrying out these obligations there is substantial alignment between the UK GDPR and the EU’s General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR), and the Guide concentrates on the position under the UK GDPR For...

Practice Note This Practice Note sits within the Data Protection Negotiation Guide ( Guide). This section covers negotiating clauses on erasure and handback of personal data once processing ends in agreements between controllers and processors that are subject to the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR). For an introduction to the Guide, see Practice Note: Data protection negotiation guide—controller: processor—introduction. This Practice Note uses a number of common abbreviations, which are defined separately in that introduction. As explained in Practice Note: Data protection negotiation guide—controller: processor—introduction: the parties may commercially apportion the costs and expenses of fulfilling these obligations between themselves there are notable similarities between the UK GDPR and the EU’s General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR), and the Guide concentrates on the position under the UK GDPR. For...

This Practice Note This Practice Note examines the impact of hyperscalers and leading cloud service providers ( CSPs) on IT outsourcing, as well as prevailing market approaches to negotiating and drafting the relevant agreements from a UK purchaser’s standpoint. We now live in an environment in which most technology and business process services are consumed on an ‘as a service’ model; that is, they are delivered through the cloud, either as a turnkey solution or by having the pertinent applications hosted offsite. Although some cloud services target discrete or niche needs, others are extensive and/or mission‑critical and may entail significant levels of contract expenditure. See Practice Note: The evolution of IT outsourcing. Accordingly, market practice is shaped by which provisions are commonly debated and how impacted contracts are framed when engaging with such providers. Against this backdrop, close attention is paid to the...

The International Swaps and Derivatives Association, Inc. ( ISDA) issues two standard forms of its widely used master agreement, setting out the terms and conditions governing over-the-counter ( OTC) derivatives dealings. The versions are: the ISDA Master Agreement ( Multicurrency— Cross Border) (the 1992 Master Agreement); and the ISDA 2002 Master Agreement (the 2002 Master Agreement). This Practice Note summarises the principal updates introduced by the 2002 Master Agreement and indicates matters to weigh up when negotiating a 2002 Master Agreement as compared with the 1992 Master Agreement. Payments on early termination—close-out amount replacing market quotation, loss and first and second methods The most notable revision to the Master Agreement concerns how sums are determined upon an early termination. By adopting the ‘ Close-out Amount’ in the 2002 Master Agreement, two key elections under the 1992 Master Agreement fall away: the choice between ‘ Market...

THIS PRACTICE NOTE APPLIES TO REGISTERED OCCUPATIONAL PENSION SCHEMES Given the intricacies of contemporary pensions law and scheme administration, it is little surprise that trustees of occupational pension schemes typically engage professional advisers to help them discharge their responsibilities. In addition, trustees of most registered arrangements are under a legal duty to appoint specified professional advisers, though certain schemes are excluded from these duties, depending on the character of the relevant pension scheme. For more information, see Appointing pension professional advisers and other service providers. Types of professional advisers Professionals commonly engaged in connection with (defined benefit) occupational pension schemes include: scheme auditor scheme actuary fund manager custodian of assets legal adviser Strictly, there is no statutory obligation on trustees of registered pension schemes to appoint legal advisers; however, where any individual is appointed as a legal adviser by someone other than the...

Negotiation Guide This Negotiation Guide sits within the Practical lease negotiation collection. See also Practice Note: New starter guide—entering into new commercial leases. A repair clause outlines the rights and duties of the landlord and the tenant concerning the repair and upkeep of the tenant’s premises throughout the lease term. In a multi-let property, the parties should also assess how this dovetails with the service charge provisions and the landlord’s obligation to deliver the services (which ought to include repairing and maintaining the common parts). This Negotiation Guide reviews the principal elements of a repair clause that can be incorporated into a commercial lease. It proceeds on the basis that the property contains no residential units and therefore does not address the impact of the Building Safety Act 2022 on landlord and tenant repair matters (eg relevant defects). See instead: Building Safety Act 2022...

The payment terms in a construction contract will ordinarily allow the contractor to submit applications (though submissions are not invariably required) either each month or at the close of defined phases (eg when the works hit stated milestones), and may prescribe what those applications must include as well as arrangements for settling the final account. The agreement should likewise specify the deadlines for service of the various notices in line with the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996). It will also typically include clauses dealing with loss and expense payments, interest on late payment and the withholding of retention, and may incorporate other provisions connected to payment. Many of these payment clauses will be uncontroversial and will mirror terms commonly found in the market. There are, however, several issues concerning payment that are routinely the focus of...

Although every litigation funding agreement ( LFA), along with its related papers, will in practice differ based on the financier and the nuances of the case being financed, there are core matters that must be tackled during the distinct stages of negotiation. This Practice Note forms part of a concise series of short Practice Notes by Tanya Lansky and Tets Ishikawa, Managing Directors at Lion Fish Group Ltd, designed to give participants involved in negotiating and assessing LFAs and their ancillary documents a clearer grasp of the relevant dynamics at play. Investment top-ups One plans for, and trusts, that the budget settled at the start of an LFA will suffice in full. Yet, because litigation is uncertain, there is always a possibility the initial budget proves materially insufficient, prompting a requirement to increase the investment sum agreed. Whilst some prefer to address top-up...

Negotiation Guide This Negotiation Guide sits within the Practical lease negotiation collection. See also Practice Note: New starter guide—entering into new commercial leases. It examines the core components of an insurance clause intended for a commercial property lease. Such a clause defines the respective obligations and liabilities of landlord and tenant concerning insurance of the property, including: who arranges the buildings insurance, the scope of what is insured, who bears the cost, and which risks are covered. It also allocates risk and responsibility if the property is damaged or destroyed by an insured, or an uninsured, risk. This Negotiation Guide focuses on the usual position that the landlord insures, which is standard in a commercial rack rent lease. Even where the tenant takes a lease of whole, the landlord typically seeks to protect the capital value of its asset...

It is commonplace for engagement, release and reliance letters to be executed between the parties before external counsel is on board. Even where external lawyers are engaged, these letters often sit outside their remit, so the responsibility usually rests with in-house counsel to scrutinise and negotiate them. This Practice Note offers tips, guidance and flags potential issues for in-house counsel working on lending transactions who are involved in reviewing and negotiating such letters. When are such letters required and for what type of transactions? Each letter serves a distinct purpose: Release (or hold harmless) letters provide access to reports on different aspects of a prospective borrower’s business or market; they are prepared by third parties and are usually negotiated at the outset of a deal, when the lender is deciding whether to participate Reliance letters are put in place when a lender seeks to rely on...

This Practice Note sits within, and complements, the Data Protection Negotiation Guide (the Guide). This section of the Guide covers negotiating clauses concerning data protection impact assessments ( DPIAs) in controller–processor contracts entered into under the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR). For an overview of the Guide, please see Practice Note: Data protection negotiation guide—controller: processor—introduction. This Practice Note employs several standard abbreviations, each defined separately in the introduction cited above for ease. As set out in Practice Note: Data protection negotiation guide—controller: processor—introduction: the parties may commercially apportion the costs and expenses of fulfilling these obligations between themselves as they deem appropriate there are notable parallels between the UK GDPR and the EU’s General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR), and the Guide concentrates on the position under the UK...

THIS PRACTICE NOTE APPLIES TO DEFINED BENEFIT OCCUPATIONAL PENSION SCHEMES Purpose of scheme funding negotiations Funding discussions typically take place between the employers that sponsor pension schemes and the trustees who run them. Trustees and sponsoring employers are generally required to agree the following funding matters: the valuation of a defined benefit ( DB) scheme’s assets and liabilities on a scheme‑specific basis (or, more precisely, the methods and assumptions used to determine the scheme’s ‘technical provisions’) the statement of funding principles, being a written explanation of the trustees’ policy for achieving the statutory funding objective if the valuation shows the statutory funding objective was not met at the effective date (that is, the scheme’s assets are less than its liabilities on a scheme‑specific funding basis), the recovery plan the schedule of contributions, which broadly sets out the contributions the employer will be required to pay to the scheme in the...

Practice Note This Practice Note sits within the Data Protection Negotiation Guide (the Guide). This section covers negotiating clauses arising from Article 28(1) of the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR), which obliges controllers to engage only processors offering ‘sufficient guarantees’ to deploy technical and organisational safeguards, ensuring UK GDPR-compliant processing and protection of data subjects’ rights. For the Guide’s introduction, related materials and instructions on use, see Practice Note: Data protection negotiation guide—controller: processor—introduction. This Practice Note utilises several common abbreviations, which are defined in that introduction As explained in Practice Note: Data protection negotiation guide—controller: processor—introduction: the parties retain commercial flexibility to divide the costs and expenses of meeting these obligations between themselves there are substantial similarities between the UK GDPR and the EU’s General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR), and the Guide...

This Practice Note forms part of the Data Protection Negotiation Guide (the Guide). This segment of the Guide considers negotiating terms on notifying data subjects of breaches within controller–processor contracts governed by the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR). For an overview of the Guide, consult Practice Note: Data protection negotiation guide—controller: processor—introduction. This Practice Note uses certain standard abbreviations. Their meanings are set out separately in the introduction referenced above. For ease of reference within that introductory material. As explained in Practice Note: Data protection negotiation guide—controller: processor—introduction: the parties may commercially decide how to apportion the costs and expenses of carrying out these duties between them there are notable parallels between the UK GDPR and the EU’s General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR) and the Guide centres on the...

Practice Note This Practice Note sits within the Data Protection Negotiation Guide (the Guide). This section considers how to negotiate clauses on notifying the ICO of breaches in agreements between controllers and processors governed by the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR). For a primer on the Guide, see Practice Note: Data protection negotiation guide—controller: processor—introduction. A number of standard abbreviations are used here; their meanings are given in that introduction. As set out in Practice Note: Data protection negotiation guide—controller: processor—introduction: the parties may commercially apportion between them the costs and expenses of fulfilling these obligations the UK GDPR closely aligns with the EU’s General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR), and the Guide concentrates on the position under the UK GDPR. For information on the background to the UK GDPR and its...

Although every litigation funding agreement ( LFA), together with its associated documents, will differ according to the funder and the particularities of the matter being financed, there are recurring issues that must be addressed throughout the negotiation stages. This Practice Note is part of a short series of Practice Notes by Tanya Lansky and Tets Ishikawa, Managing Directors of Lion Fish Group Ltd, created to give those negotiating or assessing LFAs and their accompanying documents a clearer grasp of the factors in play. Control A frequent question for stakeholders considering litigation funding is how a funder’s involvement in a financed case might translate into control. Funders should not be directing a funded claim; this is commonly handled by an express clause confirming that the litigant retains sole conduct of the proceedings. However, when negotiating an LFA, one should be alert to the nuances that can attach to any...