Legal Practice Notes

This Practice Note was prepared by Anne Redston, Barrister. It reflects her personal view; she is not authorised to speak for the Tribunals Service or the judiciary. This Practice Note: explores how legal professional privilege ( LPP) operates in relation to tax matters examines the relationship between LPP and HMRC’s powers to obtain information and conduct inspections considers the extent to which LPP is available to non-lawyer tax advisers This Practice Note is a brief overview and does not cover every circumstance, so you may need further advice concerning your client’s position. For example, it does not consider privilege: under Scots law, or in relation to criminal proceedings, such as tax fraud It also does not address without prejudice privilege. This is considered in Practice Note: Without prejudice communications and in Wired...

When is privilege relevant? Privilege is a core constitutional right at common law that permits a person to refuse, resist or object to being compelled to disclose information or to produce a document for someone else. Issues of privilege commonly arise in disputes before the Court or the Pensions Ombudsman, because privilege can justify keeping back a document that is otherwise disclosable from the normal inspection or production process. Operating as a rule of procedure and evidence, it prevents privileged material from being adduced and can also stop a witness from being obliged to answer questions about it. It is equally a rule of substantive law, meaning that: it allows a person, beyond civil proceedings, to object to any demand for privileged material ......

Companies confronted with criminal or associated proceedings in England and Wales have three principal routes to avert prosecution—obtaining an out-of-court disposal, pursuing civil enforcement like civil recovery orders, or entering deferred prosecution agreements ( DPAs). This Practice Note concentrates on DPAs, and on the core considerations for businesses when handling any voluntary disclosure of documents shielded by legal professional privilege ( LPP). For broader guidance on DPAs, see the Practice Notes: Deferred prosecution agreements, DPA process, and DPAs in practice. For detail on out-of-court disposals and civil enforcement, refer to: Out of court disposals in criminal cases—overview, and Civil enforcement as an alternative to criminal prosecution—overview. Although the UK DPA framework has been comparatively underutilised since its 2014 launch (see Practice Note: DPAs entered into to date—tracker), evolving policy and legislation suggest DPAs may feature more often, requiring more companies to wrestle with...

The purpose of this Practice Note is to set out practical guidance on how best to keep legal professional privilege ( LPP) intact for the client throughout the various stages of a criminal investigation. For information on legal privilege and how it operates in a criminal context, see Practice Note: Legal Professional Privilege in criminal proceedings. For information about LPP in general terms, see Practice Note: Legal professional privilege in civil proceedings. Preserving privilege during a dawn raid/search and seizure One possibility is that individuals or corporate entities under investigation receive an unannounced visit at their premises or homes, enabling investigators to conduct searches of property and arrest them for the purpose of interviewing them; this is commonly termed a ‘dawn raid’. Many individuals and organisations are insufficiently prepared for such raids, and LPP material is frequently contained within computer files and scattered around the office or...

This Practice Note offers a high-level overview of privilege between clients and their legal advisers, viewed from the standpoint of an in-house lawyer. It is intended for banking and finance lawyers working within banks or other financial institutions. It signposts where questions of privilege may emerge for in-house banking and finance counsel and sets out practical steps to handle them. Privilege is a complex area and, accordingly, further reading is recommended. The following provide overviews of further reading materials: Privilege and without prejudice communications—overview Legal professional privilege— LPP—for in-house lawyers—overview What is privilege? The principal purpose of privilege is to protect the confidentiality of communications between clients and their lawyers, or, in some instances, third parties. Privilege allows a party (or its successor in title) to resist disclosure of documents to a third party, the court or tribunal. The...

What is legal professional privilege? This Practice Note is aimed at in-house lawyers, including those working within law firms. It explains what legal professional privilege ( LPP) means, how it operates, and who owns it. The Note also sets out how LPP can be lost or waived and summarises privilege issues in selected other jurisdictions. It covers legal advice privilege and litigation privilege, the two distinct limbs of LPP. Where appropriate, it draws on SRA guidance for in-house lawyers. See section: SRA guidance for in-house lawyers. Although parts of the law on privilege remain untested and open to academic discussion, in-house practitioners will typically decide if privilege applies by practically applying core principles and using professional judgement. LPP is an umbrella concept comprising: legal advice privilege ( LAP), and litigation privilege It protects the confidentiality of written and oral...

Legal Professional Privilege ( LPP) safeguards the privacy of spoken and written exchanges between solicitors and their clients. It allows a party to resist disclosure of material to a third party or the court—see Practice Note: Legal professional privilege for in-house lawyers. Explaining LPP to your colleagues You must be able to explain precisely what privilege means to your colleagues. Be careful about the language you choose to use. Keep messages clear and avoid jargon—it can be preferable not to use the phrase 'legal privilege' at all when speaking with colleagues. Set out clearly how privilege operates in practice and what is required. Explain that LPP shields the organisation’s confidential legal advice and communications from third parties, including regulators and competitors. To protect such material, keep it confidential and share it only with defined individuals. It is the responsibility of all employees to protect the...

There are five key steps to improving efficiency: define which process requires improvement (see Practice Note: Improving efficiency: Step 1—identify and define the problem) measure the issue (covered in this Practice Note) analyse the information (see Practice Note: Improving efficiency: Step 3—analyse what’s causing the problem) enhance the process (see Practice Note: Improving efficiency: Step 4—improve the problem) control, ie embed the new approach so it becomes business as usual ( BAU) (see Practice Note: Improving efficiency: Step 5—embedding changes) Management consultants typically label this the ‘ DMAIC framework’. This Practice Note concentrates on Step 2—measuring the problem or inefficiency identified during Step 1, the ‘define’ phase. Every form of waste or inefficiency imposes a cost on the department. Some are direct, for example excess equipment, while others arise from lost time (opportunity cost) and the use of...

We have created a collection that brings together the wide-ranging ESG and sustainability matters for business in a hub, enabling practitioners to navigate this complex landscape. With this material, practitioners will be able......

Even with strong and effective internal complaints handling, a law firm may still find a complaint escalates to the Legal Ombudsman ( Le O). This How-to-guide offers practical guidance on dealing with complaints referred to Le O. When are complaints referred to Le O? See Practice Note: Legal complaints handling—regulatory bodies— Legal Ombudsman for guidance on who can complain to Le O. Typically, a complainant may approach Le O only after using the firm’s internal complaints process—by making a complaint orally or in writing—and they: are dissatisfied with the firm’s final written reply have not received a final written reply from the firm within eight weeks For guidance on establishing and maintaining effective complaints handling procedures, see Practice Notes: How to implement and maintain effective complaints handling procedures—law firms and How to handle a complaint step by step—law firms. Le O also has...

The UK nuclear market for construction industry supply chain members is significant. For 2015/16, the Nuclear Decommissioning Authority forecast expenditure of £3.3bn solely for civil decommissioning; factor in military decommissioning and the substantial prospective value of nuclear new build and the total opportunity is vast. The field demands an extensive span of construction inputs, ranging from major civil engineering, demolition and project management, through to design disciplines and facilities management (with plenty more in addition). Certain offerings call for dedicated nuclear expertise, while others do not; nevertheless, every participant in the nuclear supply chain must recognise the particular considerations that attach to working in this arena. Regulation is stringent in the nuclear arena, especially within the UK, and the contractual frameworks and documentation employed can be accordingly intricate. This Practice Note offers a primer on the sector from the viewpoint of a legal...

This Practice Note is primarily intended for brands that are planning to work with influencers (or other talent) on social marketing campaigns and advertising promotions within China. Influencer endorsement Influencer ‘endorsement’ is chiefly governed and supervised under the Chinese Advertising Law ( CAL), which is the principal body of legislation regulating commercial advertising activities across China. The CAL applies widely to commercial advertising where commodity traders or service providers, whether directly or indirectly, present goods or services they market within China. Until 2015, the CAL contained no clauses concerning endorsements or influencer activity. When the CAL was updated in 2015, however, a definition of ‘endorsers’ and tailored provisions addressing endorser conduct were introduced. Endorsers are described in a broad, neutral manner as: ‘natural persons, legal persons or other organisations other than advertisers that recommend or demonstrate products or services in their name or image in...

The Basic Curriculum in England In England, the Basic Curriculum consists of three components: religious education sex education the National Curriculum Collective worship Each school day—though not always at the outset—pupils in maintained schools, including special schools, should take part in collective worship, either as a whole or in groups by age or school, and this is to happen on the school premises. On special occasions, the governing body, following consultation with the headteacher, may arrange for it to be held elsewhere......

This Practice Note forms part of a wider set addressing National Non- Domestic Rates ( NNDR). It looks at business improvement districts ( BIDs), outlining their purpose, what they are, and the processes for their creation and funding. It also considers business rates supplements and the retention of NNDR by local authorities. What are business improvement districts? Section 41 of the Local Government Act 2003 ( LGA 2003) introduces the statutory framework for BIDs. Under it, a billing authority may impose an additional levy on ratepayers within a BID area to finance projects that deliver extra services or further enhancements for the benefit of the local community (defined broadly as ‘those who live, work or carry’ on any activity in the district). Two or more billing authorities can agree to establish BIDs that span their borders, known as joint...

Costs insurance This Practice Note examines costs insurance, also known as legal expense insurance ( LEI), which protects an insured individual against the risk of an adverse costs order in litigation. The principal forms are: before the event insurance ( BTE insurance) after the event insurance ( ATE insurance) This Practice Note should be read alongside Practice Note: Recovery of costs insurance premiums. Insurance is a complex field and is subject to regulatory requirements. It is crucial to understand those requirements, as non-compliance could lead a court to conclude that the policy is unenforceable, which in turn may restrict costs recovery. See further: Insurance contracts—overview and Regulated activities—overview. LEI policies are regulated by the Insurance Companies ( Legal Expenses Insurance) Regulations 1990, SI 1990/1159. LEI insurance involves paying a premium for the cover, and that cover will be subject to an excess that is not...

This Practice Note examines the effect of a court-appointed receiver on employees, contracts and landlords. Employees Typically, a court-appointed receiver is named as receiver and manager, so control of the company’s business vests in that receiver and manager. This alters the identity of the employer. Accordingly, the court’s appointment of a receiver and manager to the company results in the automatic termination of all employee contracts. Those employment contracts end with immediate effect......

This Practice Note forms part of the Share purchase transaction collection. The reporting process Every adviser appointed to carry out due diligence ought to promptly notify their principal conclusions as they first emerge—particularly notable risks and concerns—and subsequently compile a comprehensive due diligence report drawing focused attention to any material matters identified during their detailed review. The advisers’ engagement letters should specify the agreed timetable, format and substance of the due diligence report. Preliminary or interim papers can be produced and shared at intervals during the exercise, enabling significant points to be addressed when they surface. Frequently, by the stage the definitive report is delivered to......

This Practice Note explains the different categories of schools It first gives an overview of the initial tier of categorisation, separating independent schools, academies and free schools, and maintained schools; it then describes the further categorisation of maintained schools by ownership, pupils’ age ranges and pupil intake. It also sets out the difference between ‘soft’ and ‘hard’ federations of maintained schools. Education law treats each category differently. A school’s governance arrangements, its funding, and the processes for opening, closing or altering a school all turn on its category. These classifications underpin governance, funding and structural change in every case. At the first level, schools fall into three groups: independent schools (commonly known as private schools) academies and free schools maintained schools Sub-categorisation also classifies schools by their ownership, by their pupils’ age ranges and by other selectivities of pupil intake. Many schools make no...

This Practice Note examines how Brexit affects asset managers and investment funds, and outlines essential ‘no-deal’ readiness measures. For a summary of related Brexit Practice Notes, refer to: Brexit and financial services: materials on the post- Brexit UK/ EU regulatory regime [ Archived]. For deeper analysis of Brexit’s implications for funds and their managers, consult: Impact of Brexit: AIFMD—quick guide [ Archived] and Impact of Brexit: UCITS—quick guide [ Archived]... ‘ Onshoring’ of EU funds and asset management regulatory regimes The principal EU regimes governing asset management and investment funds (the Relevant Regimes) comprise: the Alternative Investment Fund Managers Directive 2011/61/ EU ( AIFMD) the Undertakings for Collective Investment in Transferable Securities ( UCITS) Directive 2009/65/ EC the recast Markets in Financial Instruments Directive 2014/65/ EU ( Mi FID II) Throughout the ‘ Brexit transition period’...

For a thorough exploration of the oversight, consenting and incentivisation of the net zero transition under the laws of England and Wales, see also: Collinson and Hockman on Energy Law: Regulating, Consenting and Incentivising the Energy Transition. That textbook provides extensive treatment of matters addressed in this Practice Note... Quick links If you are focused on particular elements of the developing GB transmission competition regime, the following sections of this Practice Note may help: The existing position The CATO mechanism The SPV model The Competition Proxy model The Hinkley- Seabank project Introduction The Great Britain ( GB) onshore electricity transmission network has, since privatisation, been owned, operated and upgraded by three licensed transmission system owners ( TOs). These are three privately held companies: National Grid Electricity Transmission plc ( NGET) for assets in England and Wales; SP...