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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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Awards by the FOS If a complaint made to the Financial Ombudsman Service ( FOS) is upheld, the FOS can require a respondent firm (the respondent) to pay compensation, costs and/or interest to the complainant, and/or can instruct the respondent to take any other steps the FOS deems appropriate in the circumstances. The applicable rules appear in DISP 3.7 of the FCA Handbook and derive directly from the relevant sections 229 and 230 of the Financial Services and Markets Act 2000......
This Practice Note examines performance and testing under the 1999 editions of the Red, Yellow and Silver Books, the Gold Book 2008 and the Pink Book 2010. It reviews performance and testing under the 1999 Red, Yellow and Silver Books, together with the Gold Book 2008 and the Pink Book 2010. For detailed guidance on the 2017 Red, Yellow and Silver editions, see Practice Note: FIDIC contracts 2017—performance and testing requirements. A principal concern for both the employer and the contractor (the 'parties') is determining when the works are to be treated as 'complete'. The employer will want confirmation that the works have been fully executed in accordance with the contract requirements, while the contractor will want certainty about what those requirements are and the method by which they can be satisfied. Consequently, it is essential that the contract sets out, in explicit terms, the...
This Practice Note examines the insurance provisions in the 2017 FIDIC Red, Yellow and Silver Books. It addresses liability for the Works, cover for the Works, and the additional policies the Contractor is required to arrange, such as professional indemnity, public liability and employer’s liability insurance. For commentary on the 1999 forms, see Practice Note: FIDIC contracts (pre-2017 editions)—insurance. The 2017 Books set out, for each policy, who must insure, the sums and the scope of cover, and these requirements appear in: the Contract Data the Special Conditions (amendments to the General Conditions) the General Conditions The order above governs which provisions prevail (clause 1.5). The remainder of this Practice Note summarises the requirements in the General Conditions. Liability or risk in the Works The Contractor’s liability for the Works, which establishes its insurable interest, is stated at clause 17.1. From the Commencement Date until the issue of the...
This Practice Note reviews the insurance provisions in the 1999 editions of the FIDIC Red, Yellow and Silver Books. For guidance on the 2017 editions, see Practice Note: FIDIC contracts 2017—insurance. The FIDIC insurance provisions The insurance requirements in the FIDIC contracts—identifying which party arranges cover, the quantum and the nature of insurance—are located in: the letter of acceptance of tender the particular conditions (amendments to the general conditions) the general conditions This sequence sets the order of precedence for deciding which insurance provisions apply. The following summarises the requirements in the general conditions. Liability or risk in the works The Contractor’s risks The Contractor’s liability for the works, which gives it an insurable interest, is stated at clause 17.2. The Contractor must care for the works until take over, and any damage must be made good at the Contractor’s own risk and expense unless caused by an Employer risk......
Part XXIV of the Financial Services and Markets Act 2000 ( FSMA 2000) Part XXIV enables the regulators to take part in insolvency-related proceedings against firms and individuals. These powers extend to authorised firms and recognised investment exchanges, and also to those carrying on regulated activities in breach of the general prohibition ( FSMA 2000, ss 19–20). Each provision in Pt XXIV defines when rights accrue, and in some cases more than one regulator benefits. Seeking insolvency orders is a key regulatory step, particularly where unauthorised business is being conducted. Such proceedings may target insolvent firms and individuals, and those that are not technically insolvent but for which it is just and equitable that the business should stop. The FSMA 2000 provisions should be read with the UK bank recovery and resolution regime, including the special resolution regime under the Banking Act 2009 ( BA...
Background to client order handling requirements This Practice Note sets out how firms authorised by the Financial Conduct Authority ( FCA) must handle and administer client orders. For targeted guidance on best execution, see Practice Note: FCA best execution rules. The FCA’s client order handling obligations are located in chapter 11.3 of the Conduct of Business Sourcebook ( COBS 11.3) and give effect to selected provisions of the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II Directive) and the Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014) ( Mi FIR), taken together as the Mi FID II framework, as further supplemented by the now assimilated Commission Delegated Regulation ( EU) 2017/565 (the UK Mi FID Org Regulation) (notably Articles 67–69). The Mi FID II Directive and Mi FIR entered into force on 2 July 2014....
ARCHIVED: This archived Practice Note sets out background on the Retail Distribution Review ( RDR), explaining what the review covered and its impact on personal pension schemes. It is no longer maintained. For details on measures concerning costs and charges, see Overview: Costs and charges—overview. Application of the RDR The Retail Distribution Review ( RDR) brought substantial reforms to the retail investment market and applies to regulated firms operating in that sector. This Practice Note will interest those advising such firms and anyone seeking to understand why the market has shifted. It: offers a general summary of the RDR examines in more depth certain specific issues for contract-based pension schemes Background to the RDR The RDR commenced in June 2006 as a comprehensive review of practices within the retail investment market and continued for six years, ending in a suite of regulatory changes. The reforms...
ARCHIVED: This Practice Note is archived and is not being actively updated at present. For further material on FCA investigations, please refer to relevant Practice Notes: FCA enforcement essentials—investigations; FCA and PRA search and seizure powers and dawn raids; and Offences during an FCA investigation. The Financial Conduct Authority ( FCA) carries a broad remit, encompassing the power to secure adherence to its rules and competition law so as to achieve its strategic and operational aims. For further detail, see Practice Notes: FCA—corporate governance and Financial Conduct Authority—functions. The FCA can deploy an array of powers for this purpose, including regulatory, disciplinary, civil and criminal enforcement tools. For additional guidance, see Practice Note: FCA enforcement essentials—investigations— The FCA’s Toolkit. This Practice Note offers a primer on the FCA’s criminal enforcement investigatory powers. For comprehensive guidance, consult the FCA and PRA...
This Practice Note summarises the Financial Conduct Authority ( FCA) Handbook, which contains the FCA’s legislative and other provisions made under powers conferred by the Financial Services and Markets Act 2000 ( FSMA 2000). It highlights the principal block structure of the Handbook and, while focused on the insurance and reinsurance sector, it also addresses the Handbook’s general features. The structure includes: High Level Standards Prudential Standards Business Standards Regulatory Processes Redress Specialist sourcebooks Listing, Prospectus and Disclosure Rules Handbook Guides Regulatory Guides A Glossary Background On 1 April 2013, the former Financial Services Authority ( FSA) Handbook was divided between the FCA and the Prudential Regulation Authority ( PRA), creating two handbooks, one for each regulator. Consistent with their respective responsibilities and objectives, most FSA provisions were transferred into the PRA’s Handbook...
This Practice Note covers: the FCA’s approach to settling enforcement action under its Enforcement Guide the advantages of early resolution for the FCA, firms and individuals the settlement decision process in chapter 5 of the Decision Procedure and Penalties Manual ( DEPP 5) the Settlement Discount Scheme under DEPP 6.7 the role of the FCA’s Settlement Decision Makers the status of settlements and issues relating to publicity how settlement works in practice the Settlement Discount Scheme that existed before 2017, which remains relevant where breaches occurred before March 2017 Settlement of FCA enforcement cases—overview A large proportion of the FCA’s enforcement cases conclude by settlement. This is not comparable to an out-of-court commercial compromise, where two parties negotiate and strike a mutually acceptable deal. Instead, an FCA settlement is a regulatory...
This Practice Note considers the implications of the Financial Conduct Authority’s ( FCA) Consumer Duty for payments and electronic money (or e-money) firms For the purposes of this Practice Note, a payments firm is used as a broad term for a ‘payment service provider’ ( PSP) under the Payment Services Regulations 2017, SI 2017/752 ( PSRs 2017). Authorised payment institutions Small payment institutions Registered account information service providers References to an e-money firm mean entities within the Electronic Money Regulations 2011, SI 2011/99 ( EMRs 2011). Authorised electronic money institutions Small electronic money institutions In broad terms, the Consumer Duty (the Duty) captures firms undertaking regulated activities in the UK that fall within the FCA’s scope. Some payment and e-money firms will deal directly with retail customers, while others participate indirectly through a distribution chain that reaches a retail end user. The Duty...
Background to best execution requirements This Practice Note sets out the Financial Conduct Authority’s ( FCA) rules governing the manner in which client orders must be executed, commonly known as the best execution rules. Originating under the Markets in Financial Instruments Directive ( Directive 2004/39/ EC) ( Mi FID), these obligations form part of a common EU-wide framework for investor protection intended to support overall market efficiency more broadly and deliver the most favourable execution outcomes for individual investors in particular. Mi FID has since been superseded by the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) (the Mi FID II Directive) and the Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014) ( Mi FIR), together comprising the Mi FID II framework. Both the Mi FID II Directive and Mi FIR entered into force on 2 July 2014....
Practice Note This Practice Note outlines widely used terminology and definitions, and what they signify within the non-court routes to resolving disputes, namely family mediation, collaborative law, and family arbitration. It also provides a summary of the pertinent rules and required forms, together with pointers to related resources. Mediation Term Description Agreement to mediate A document executed by the parties to the mediation and the mediator(s) which defines the scope and framework of the mediation. See Precedent: Agreement to mediate BFLS 6E [21004]. Co-mediation Mediation conducted by two mediators—commonly, one co-mediator will be a lawyer and the other is not legally qualified. Form FM5 (statement of position on non-court dispute resolution) A form that must be completed setting out the parties’ positions on engaging with non-court dispute resolution. This form must be filed and served seven days before the first ‘on notice’...
Reviewing 2017 This year’s annual review reflects on the most notable developments in family financial provision during 2017, spanning the sharing principle and non-matrimonial property, contributions and stellar performance, variation of financial orders, and fresh guidance from the President of the Family Division on standard orders and the Financial Remedies Court. It also outlines updates to Lexis Nexis®’s content and what lies ahead over the next 12 months. Practice and procedure What happened? The Family Procedure ( Amendment No 2) Rules 2017, SI 2017/741 revised the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, r 9.15, so that all matters should be listed for a financial dispute resolution ( FDR) appointment, except in defined situations. What are the practical implications? Before these changes, FPR 2010, r 9.15(4) required the court at the first appointment to decide if an FDR referral was suitable and, if so, to order that an FDR take...
This Practice Note highlights key factors when seeking to enforce a family court order against a company or trust—often described as ‘piercing the corporate veil’—including scenarios with a foreign element. It also considers when a trustee, beneficiary or company director should be joined to the proceedings. Enforcement against a company A company is a separate legal person from its owner or controller. The same concept applies to trust property held by a trustee for beneficiaries. See: Enforcement against a trust and Piercing the corporate veil. Where the court is able to enforce a financial order directly against the assets of a company or trust, this is commonly termed ‘piercing the corporate veil’. In effect, the court sets aside the barrier created by interposing a company or trust so that an order can be enforced where the party has no sufficient assets in their own name....
Practice Note This Practice Note outlines the principal legal issues to consider when a company extends a public offer of securities to investors in the United States of America ( US), including: the available exemptions from SEC registration the elements that shape disclosure other regulatory considerations influencing who may or will buy the offered securities, eg: the US Investment Company Act of 1940 the Employee Retirement Income Security Act of 1974 US tax rules the US Securities Exchange Act of 1934 the financial intermediaries permitted to offer the securities in the United States whether US investors expect to hold the non- US issuer’s securities directly or through American...
CASE HUB ARCHIVED –this archived case hub reflects the position at the date of the judgment of 13 December 2012; it is no longer maintained. See further: timeline, commentary and related/relevant cases Case facts Outline A national reference from the French Cour de cassation to the Court of Justice seeking a preliminary ruling under Article 267 TFEU on the application of the Commission’s Notice on Agreements of Minor Importance (the ‘ De Minimis Notice’) and on whether the stated market‑share thresholds are binding upon national authorities. Parties Expedia Inc Autorité de la concurrence ( French Competition Authority) Cour de cassation ( France) Market(s) Online travel agency services within France. Background to reference The Cour de cassation sought the ruling in proceedings it was hearing between Expedia, the international online travel agency, and the French Competition Authority. Expedia had set up a joint venture, ‘ Agence VSC’, with Société...
Executing entity— Q& As This Practice Note presents Q& As on practical execution matters applicable to certain entities, specifically: Individuals Companies, corporate bodies and corporations Partnerships, LLPs and limited partnerships Charities, trusts and unincorporated associations Attorneys Personal representatives Individuals Where individuals are party to a transfer of shares (including a share purchase agreement) to be executed as a deed, and the three individual sellers also act as trustees of Trust 1, Trust 2 and Trust 3, does the share purchase agreement need 12 execution blocks with each seller/trustee signing four times, or will a single execution block per person suffice? If a person intending to sign a contract dies before signing, may their personal representative ( PR) sign in their place, or are there other ways to complete the contract? If a PR can sign, is any...
ARCHIVED: This Practice Note has been archived and is not maintained On 10 May 2022, the Commission adopted the new Vertical Block Exemption Regulation 2022/720 ( VBER 2022). VBER 2022 superseded the earlier Vertical Restraints Block Regulation 330/2010 ( VBER 2010, which this Practice Note also refers to as the VRBE) with effect from 1 June 2022. This Practice Note was prepared for the VBER 2010. NOTE— The VBER 2010 expired on 31 May 2022 and was replaced by the VBER 2022 from 1 June 2022. Under Article 10 of VBER 2022, a 12-month transition period ran until 31 May 2023 for pre-existing vertical agreements in force on 31 May 2022 that fulfilled the conditions for exemption under VBER 2010 on that date but did not meet the exemption conditions in VBER 2022. Accordingly, this Practice Note is provided for background...
ARCHIVED —this archived case hub captures the position as at the decision date of 21 July 2022; it is no longer being maintained. NOTE—appeals were lodged before the CAT by Pfizer and Flynn Pharma following the CMA’s 2016 decision (1525/1/12/22 and 1524/1/12/22). Subsequent appeals were also lodged by Pfizer and Flynn Pharma following the CMA’s 2022 decision (1525/1/12/22 and 1524/1/12/22). See further, timeline, commentary and related cases. Case facts Outline CMA Article 102 TFEU/ Chapter II investigation into Pfizer and Flynn Pharma concerning an alleged abuse of a dominant position through charging excessive and unfair prices for an anti-epilepsy drug, namely phenytoin sodium capsules ( Case CE/9742-13). Latest developments On 21 July 2022, the CMA issued its infringement decision and imposed the following fines: Pfizer—£63.3m Flynn—£6.7m (representing 10% of Flynn’s global...
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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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