Legal Practice Notes

ARCHIVED: This Practice Note has been archived and is not maintained. The Regulatory Enforcement and Sanctions Act 2008 permits regulators to be granted powers to address offences by using civil sanctions, including environmental enforcement undertakings, instead of initiating a criminal prosecution. Natural England ( NE) have authority to impose enforcement undertakings for a range of environmental offences under the Environmental Impact Assessment ( Agriculture) ( England) ( No 2) Regulations, SI 2006/2522, and the Wildlife and Countryside Act 1981 ( WCA 1981). An enforcement undertaking is a written commitment to take action within a defined period: to ensure the offence does not continue or happen again to return the position, so far as possible, to what it would have been had the offences not occurred to benefit a third party (including, where suitable, a monetary payment), or to deliver an...

This Practice Note outlines both historic and current roles undertaken by National Grid and its owned entities within the Great Britain ( GB) energy market. It covers National Grid Electricity Transmission plc, National Grid Electricity Distribution plc, National Gas Transmission plc ( NGT), and National Grid’s former responsibilities as the Electricity Market Reform ( EMR) Delivery Body. It also describes the previous separation between electricity transmission owner and electricity system operator functions, and how those TO and SO roles were divided within NGET. Finally, the Note assesses the effects of the newly created National Energy System Operator ( NESO) on National Grid and its place within the GB energy system. The Note intentionally uses ‘ Great Britain’/‘ GB’ and the ‘ United Kingdom’/‘ UK’ with precision. Great Britain/ GB means Scotland, England and Wales (excluding Northern Ireland), while the United Kingdom/ UK...

This Practice Note explores when domestic, local or national courts can assist, facilitate, step into, or otherwise intrude upon international arbitration proceedings (the arbitral process), and clearly sets out the limits placed on those courts’ authority and remit in this context. Broadly speaking, national judiciaries usually have only a modest part to play in connection with international arbitration proceedings or processes where appropriate. As explained here, judicial involvement is ordinarily curtailed to honour the private character of the dispute resolution mechanism selected by the parties themselves......

ARCHIVED: This Practice Note is archived and is not maintained. Commercial skills Commercial skills for complex government projects ( National Audit Office) reviews the extent of commercial capability across government and the measures then being pursued by the Office of Government Commerce ( OGC) (now the Crown Commercial Service) and departments to strengthen it. ‘ Commercial skills’ are defined as ‘the ability to interact on equal and professional terms with the private sector’. The National Audit Office ( NAO) considers these skills essential to achieving value for money within the government’s major projects portfolio (valued at £200bn at the time) and other complex initiatives. Projects should be delivered by teams with strong commercial aptitude, and must be approved, led and governed by senior civil servants and departmental boards with commercial awareness. In a separately published Appendix 2 to the report, the NAO lists government projects that it and the...

Nanotechnology—opportunities and risks Nanotechnology deals with the fabrication and application of matter at ultra-small scales. Nanomaterials are quantified in nanometres (nm) and can be many thousands of times thinner than a human hair; a single hair measures around 80,000 to 100,000 nm across. At these dimensions, substances display properties that diverge from those of the same material in bulk form, enabling novel uses while potentially introducing distinct hazards. Current adopters span key fields and wider industries: Biomedicine, electronics and energy Cosmetics, defence, automotive and agriculture Applications range from high-volume commodities, for example carbon black in car tyres, through to specialised, low-volume technologies. Cosmetics commonly incorporate nano titanium dioxide and zinc oxide to deliver functions such as UV filtering, while gold and silver nanoparticles feature in medical diagnostic tools. A 2023 report put the global nanotechnology market at US$69.15bn in 2022, projecting expansion to US$248.56bn by 2030. The...

This Practice Note explores whether music compilations can attract copyright as databases. At its core, the enquiry is whether the compilation’s contents reflect the author’s own intellectual creation (explained in more detail below). Copyright subsistence in a database (often termed database copyright) is separate from the sui generis database right, which is also addressed in this Practice Note. The sui generis database right concerns legal protection for databases of any kind and stems from the Copyright and Rights in Databases Regulations 1997 ( CRD 1997), SI 1997/3032. Whether a sui generis database right exists does not settle if copyright also subsists in the same database, and vice versa. A database may benefit from one, both, or neither right. Court of Justice judgments This Practice Note cites rulings of the Court of Justice. For guidance on whether decisions of the Court of Justice bind UK courts, see...

Introduction—a pure theory or a dead practice? For years, both Islamic financial institutions ( IFIs) and conventional banks have delivered Islamic financing. As outlined in Practice Note: The structure and elements of a Musharaka transaction, profit-and-loss sharing sits at the heart of Islamic finance because it reflects a core Shari’ah principle: bearing risk. Financing founded on riba (interest) is treated as non‑ Shari’ah‑compliant, since the contractors or parties (the Partners) do not participate jointly in gains and losses; the venture lacks fair risk allocation, leaving one side disproportionately exposed. Musharaka—the Shari’ah‑compliant partnership instrument built on sharing profits and losses—together with mudaraba, is among the few Islamic finance tools that rely almost entirely on this model. This emphasis on mutual risk and return has led many within Islamic banking to regard Musharaka as one of the most genuine expressions of Islamic financing....

During the development of the Murabaha structure for the UK, practitioners recognised that its novelty would inevitably create some uncertainty. Consequently, they aimed to embed features that would assist courts when construing Murabaha arrangements. They also acknowledged that conventional legal systems and Shari’ah approach Murabaha in distinct ways. This divergence did not deter Islamic finance participants from advancing the Murabaha agreement; even closely related legal systems, such as the English system, can reach different views on transactions and structures. Accordingly, Islamic finance specialists have crafted Murabaha contracts and other instruments so that they operate under both Shari’ah and the pertinent conventional legal frameworks. The differing readings of Murabaha under conventional law and Shari’ah reflect contrasts in historical evolution and emphasis. In the UK, funders and customers have built a framework around the notion that money can be treated as an asset, creating a market in...

Murabaha Murabaha ranks among the most widely used techniques in Islamic finance globally. This arrangement, often described as 'cost plus profit financing', requires at least three participants. It is naturally suited to property finance, trade finance, and consumer finance transactions to support the purchase of assets. Beyond this, Murabaha can also (and frequently does) address corporate working capital needs, underpin deposit products, and act as a mechanism to generate cash flows. These arrangements are widely executed to finance the acquisition of defined assets. In a typical structure, a customer (the Customer) requests a financier—usually an Islamic financial institution ( IFI), such as a bank or fund operating in Islamic finance—to procure specified goods from an external supplier (the Seller). The IFI then buys the named goods from the Seller and resells those goods to the Customer. The steps involve the IFI buying, then selling on to the...

Several observers point out that, in UK tax, the tension between legal form and economic substance mirrors a similar dynamic within Shari’ah. From a Shari’ah vantage point, substance may likewise prevail. Yet, because the contemporary Islamic finance sector is relatively new, uncertainty over what transactions are permissible and the premium placed on Shari’ah conformity have led market actors to prioritise transactional form. Following recognised templates offers comfort that arrangements documented in that way meet Shari’ah requirements. In practice, adherence to approved forms provides reassurance that the transactions represented by such forms align with Shari’ah. Thus, reliance on long-established mechanisms such as Murabaha can seem cautious. Nonetheless, numerous detractors of Islamic finance single out this fidelity to set structures as a principal flaw. They contend these frameworks have been deployed by equity sponsors and financial firms to replicate conventional...

Introduction This Practice Note explains the disclosure obligations for matters placed on the multi-track. It further offers guidance on how to construe and apply the pertinent provisions of the Civil Procedure Rules ( CPR) and should be used alongside: Disclosure under CPR 31—pre-action considerations—checklist, and Disclosure considerations under CPR 31 after proceedings have started—checklist. For broad guidance on disclosure generally, see: Disclosure—overview. Note: this Practice Note does not aim to address claims falling within the Disclosure Scheme of the Business and Property Courts. For general guidance on that Scheme, see: Disclosure Scheme ( Business & Property Courts)—overview. For general guidance on disclosure across the other tracks, see the following Practice Notes: Disclosure in the small claims track Disclosure in fast track cases Disclosure in intermediate track cases The scope of a claim in the multi-track The multi-track is intended for cases of greater complexity, featuring nuanced legal or factual...

ARCHIVED: This archived Practice Note is no longer maintained and is supplied purely for background reference. In addition, some links may not take you to the provisions as they stood on the date this Practice Note’s guidance was issued. Note: this Practice Note provides guidance only on the multi-track provisions that took effect on 1 April 2013. It does not offer guidance on any later procedural amendments (whether to the CPR or to any other procedural rules). Nor does it give guidance on the implementation or construction of the April 2013 procedural changes (or any that followed). For guidance on the Jackson Reforms one year later and on the April 2014 CPR developments, see the Practice Notes: Jackson reforms on case management—one year on [ Archived] and CPR changes— April 2014 [ Archived]. On 1 April 2013, the Jackson Reforms...

Throughout this Practice Note, the terms ‘borrower’ and ‘mortgagor’ are treated as equivalent, and likewise ‘lender’ and ‘mortgagee’. This Practice Note applies to fixed charges as well, although it does not examine the marginal practical distinction between a fixed charge and a mortgage—see Practice Note: Mortgages for further reading on this topic. Priority of mortgages over registered land Under registered land, where several loans are secured over the same property by separate mortgages, each mortgagee is entitled to be paid out of the sale proceeds strictly and in accordance with the mortgages’ order of priority. The basic rule is that any two charges rank in the sequence of their creation ( Millet J in Macmillan Inc v Bishopsgate Investment Trust plc ( No 3))......

At any one time, an individual can be employed by more than one employer, commonly working on a part-time basis for each business. Those businesses might belong to the same group or be entirely unconnected to one another. Participation in numerous Share incentives glossary A– Z— Unapproved share option arrangements is generally not problematic; accordingly, this note concentrates on examining the effect of such simultaneous employments on an employee’s capacity to participate in HMRC statutory tax-advantaged plans, namely: enterprise management incentives ( EMI) schemes company share option plan ( CSOPs) share incentive plans ( SIPs), and save as you earn ( SAYE) schemes For more general information on each of these schemes, see Practice Notes: How EMI schemes work and key features How CSOPs work and key features How SAYE schemes work and key features What is a...

Produced in association with 4 Pump Court This Practice Note explores the feasibility of adjudication involving three or more participants (commonly referred to as multi-party adjudication in practice), such as where an employer seeks a decision about a defect attributed to both a contractor and a consultant. Adjudication is generally ill-suited to disputes with multiple parties—managing pleadings from just two sides within a 28‑day time period can already be demanding, before introducing extra complexity overall (not least when the two respondents must address each other’s points as well as those of the referring party). Consequently, most adjudication frameworks, and the Scheme for Construction Contracts, do not provide for multi‑party adjudications. For direction on which commonly used adjudication rules and standard form agreements allow multi‑party disputes, see Practice Note: Introduction to adjudication clauses and procedures. That said, some contractual arrangements purport to permit the joining of...

This Practice Note examines the appointment of an arbitral tribunal when an arbitration features multiple parties. For a general overview of multi-party and multi-contract arbitration, see Practice Note: Multi-party and multi-contract arbitration—an introduction. Tribunal appointments—potential difficulties with multiple parties In a standard two-party reference, the claimant and the respondent each choose (or propose) one arbitrator, and a party neutral chair (or presiding arbitrator) is then selected. Difficulties may emerge where several claimants or respondents cannot reach consensus on a joint arbitrator to nominate. Arbitration agreements, appointments and multiple parties Practitioners handling disputes with multiple claimants and/or multiple respondents must observe any requirements set out in the applicable arbitration rules, the arbitration agreement, and the law of the seat of arbitration. Failure to comply could render the award invalid......

What is multi-contracting? It is a procurement approach where multiple contractors are appointed separately for the distinct work packages making up a project—the employer contracts with them directly to deliver those individual packages. This procurement route is often adopted for energy schemes (power stations, wind farms, and the like) as an alternative to an EPC contracting model (see also Practice Note: EPC, split EPC and multi-party contract projects). The employer takes responsibility for co-ordinating all work packages and for handling the interfaces between them. A diagram sets out the contractual arrangement for a scheme let on a multi-contract basis (that arrangement may vary from scheme to scheme, although the diagram shows the contractual matrix). Contractors are usually engaged under target cost contracts. This type of contractual framework suits projects where the employer is best placed to assume certain...

The rise of equity financing: background to Mudaraba Interest-based, conventional funding often hampers economic justice, fairness and equity, as it burdens borrowers with liabilities that, in many cases, cannot be settled. Widespread inequality remains a severe global challenge, and Islamic financial models offer means to ease this. At the heart of Islamic banking and finance lies economic justice realised through risk-sharing. All parties to an investment are expected to participate in both profits and losses. As Ayat 8 of Surah Al Maidah in the Quran declares: O you who have believed, be persistently standing firm for Allah, witness in justice, and do not let the hatred of a people prevent you from being just. Be just; that is nearer to righteousness. And fear Allah; indeed, Allah is acquainted with what you do. Unlike conventional arrangements, which do not require tangible underlying assets, banks and...

This Practice Note sets out pragmatic guidance on moving goods among the UK, Northern Ireland and the Republic of Ireland (and between these territories and other EU Member States). It also explains what to do where consignments could be deemed at risk of entering the EU, and outlines how companies can seek authorisation to move goods into Northern Ireland. Introduction During negotiations over the United Kingdom’s withdrawal from the European Union ( Brexit), both sides recognised the need to safeguard the 1998 Northern Ireland peace settlement (the Good Friday Agreement). The challenge was devising a workable answer to the reality that the Republic of Ireland would stay within the EU single market, while Northern Ireland would leave the EU alongside the UK. The initial approach proposed that the UK, including Northern Ireland, would continue within the EU customs union until a...

Within this Practice Note, the Road Traffic Act 1988 is abbreviated to RTA 1988. Types of insurer and MIB liability In most claims, a motor insurer will extend complete indemnity to their insured under a valid policy. This signifies that the insurer accepts a contractual responsibility to discharge all damages imposed on the defendant driver. However, where the insured breaches the policy (whether before or after the event), the insurer may, under the contract, avoid liability to the insured. In that event, the insurer owes no duty to indemnify the insured thereafter......