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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 concerns arbitration proceedings under the London Court of International Arbitration ( LCIA) Arbitration Rules 2020, effective 1 October 2020. For practical guidance on arbitrations under the LCIA Rules 2014 and 1998, see the relevant Practice Notes here: LCIA arbitration—overview. For further information on issues arising in multi-party arbitration and for comparisons with the arbitration rules of other institutions, see Practice Note: Multi-party and multi-contract arbitration—an introduction. Multi-party arbitration The LCIA Rules contain some, though not extensive, provisions specific to multi-party cases. This Practice Note highlights stages of an arbitration at which the LCIA Rules include pertinent provisions. Issues of joinder and consolidation of multiple arbitrations are addressed separately in Practice Note: LCIA (2020)—tribunal's duties and powers. In brief, an LCIA tribunal may add a third person to an arbitration with the express agreement of that person and the applying party ( LCIA, art...
This Practice Note was initially prepared for Lexis Advance® Practical Guidance Hong Kong. A patent is a statutory grant that affords its proprietor a bundle of exclusive rights. When exercised, those rights operate to exclude others from practising what lies within the patent’s ambit. The Patents Ordinance ( Cap 514) ( PO) is the legislation that regulates the creation of a Hong Kong patent, the exclusive rights it confers, their scope, and the manner of their use. The exclusive rights and the patent’s scope are prescribed in PO, Pt X. The scope is described as the extent of protection ( PO, s 76). Acts of infringement The exclusive rights granted to the proprietor are set out in PO, ss 73 and 74. By relying on these provisions, the proprietor may prevent third parties from both direct and indirect exploitation of the invention; these...
This Practice Note provides guidance on costs pursuant to the Hong Kong International Arbitration Centre ( HKIAC) Administered Arbitration Rules 2024 (the 2024 HKIAC Rules; HKIAC 2024). This note offers direction on costs under the 2024 HKIAC Administered Arbitration Rules. As outlined in Practice Note: HKIAC (2024)—the HKIAC Administered Arbitration Rules—application and key features, the 2024 HKIAC Rules generally govern HKIAC arbitrations begun on or after 1 June 2024, unless the parties decide otherwise; where proceedings were commenced before 1 June 2024, the 2018 HKIAC Rules will usually apply, save where the parties agreed otherwise. A specific ‘2024 Schedule of Fees’ applies to arbitrations administered pursuant to the 2024 HKIAC Rules. The two HKIAC Practice Notes on Costs of Arbitration, based on HKIAC 2018, Sch 2/hourly rates and Sch 3/sums in dispute (the Practice Notes on Costs), effective from 11 March 2019, continue to apply...
Scope The Arbitration Ordinance ( Cap 609) ( AO) governs any arbitration pursuant to an arbitration agreement that designates Hong Kong as the seat, irrespective of whether the agreement was concluded in Hong Kong. AO applies to both domestic and international arbitrations. If the seat lies outside Hong Kong, only selected provisions of AO apply, including: stay of court proceedings where the dispute is subject to an arbitration agreement ( AO, s 20) interim measures ordered by a court in support of an arbitration ( AO, ss 21, 45, 60) enforcement of emergency relief issued by emergency arbitrators ( AO, ss 22A–22B) enforcement of the arbitral tribunal’s orders and directions ( AO, s 61) recognition and enforcement of awards ( AO, ss 82–98) The provisions of AO (subject to limited exceptions) also extend to statutory arbitrations under other ordinances, so long as AO is consistent with that ordinance ( AO, s 5)....
HMRC has power to require security from a registered person if it considers that there is a risk that a business will not fully meet its obligations to pay: Insurance Premium Tax Landfill Tax Aggregates Levy Climate Change Levy Once a Notice of Requirement to provide security is issued, continuing to trade constitutes a criminal offence. Specific offences are: Insurance Premium Tax — entering into taxable insurance agreements (as defined by section 73(1) of the Finance Act 1994) without providing security Landfill Tax — undertaking taxable activities (as defined by section 69(1) of the Finance Act 1996) without providing security Aggregates Levy — being responsible for the commercial exploitation of aggregates within the UK (as defined by section 17 of the Finance Act 2001) without providing security Climate Change Levy — being liable to account for the levy on a...
This Practice Note provides guidance on multi-party and/or multi-contract arbitrations pursuant to the Hong Kong International Arbitration Centre ( HKIAC) Administered Arbitration Rules 2018 (the 2018 HKIAC Rules; HKIAC 2018). As outlined in Practice Note: HKIAC (2018)—the HKIAC Administered Arbitration Rules—application and key features, the 2018 HKIAC Rules generally govern HKIAC arbitrations begun on or after 1 November 2018, save where the parties agree otherwise; for arbitrations started before that date, the 2013 HKIAC Rules generally apply unless the parties agreed differently. Be aware that the provisions on consolidation and on a single arbitration across multiple contracts described below are inapplicable where the underlying arbitration agreement was made before 1 November 2013, unless the parties consent otherwise ( HKIAC 2018, art 1.5). For a primer on HKIAC and its organisation, see Practice Note: HKIAC—background to and structure of the...
Pension schemes and their sponsoring employers confront a range of risks linked to their defined benefit pension schemes, a notable one being the cost of improving life expectancy. Alongside traditional ways of hedging scheme risk—such as buy-outs or buy-ins—de-risking options based on a ‘swap’ contract have been used for some time. A ‘swap’ is a broad term for an agreement under which the parties exchange a sequence of cashflows tied to an underlying asset or other variable. For more on buy-outs and buy-ins, see Practice Note: De-risking—pension buy-outs and buy-ins. What is a longevity swap? A longevity swap is a means for a pension scheme to hedge the risk that members live longer than anticipated. This is now most commonly arranged via an insurance policy (although the earliest transactions were implemented using a derivative). Under a longevity swap, the scheme trustees make...
Practice Note This Practice Note does not offer an exhaustive description of the features of the Hague Trusts Convention of 1 July 1985 on the Law Applicable to Trusts (the Convention); rather, it serves as a primer and synopsis of selected key matters connected with this intricate subject. From the outset, it should be recognised that substantial scholarly controversy surrounds aspects of the Convention, alongside calls for amendment. This, in part, reflects its genesis and the formidable challenge confronting the drafters and sponsors, namely to frame rules that would satisfy both countries whose domestic systems include trusts ('trust states') and those that do not ('non-trust states'). Inevitably, there existed a strain between positions acceptable to trust states on one side and to civilian non-trust jurisdictions on the other. Accordingly, this remains a fluid and developing field. Owing to the complexity of various...
Case law on guarantees is both extensive and intricate. A firm grasp of the judicial principles is vital when drafting and negotiating guarantees. This Practice Note highlights key authorities and related material on guarantees. The cases are grouped by topic and include: cases on the characteristics of guarantees cases on the formalities to create a guarantee cases on undue influence when taking an individual’s guarantee cases on guarantor rights cases on guarantor protections and variation of the underlying transaction cases on the rights and obligations of co‑guarantors cases on discharge or release of a guarantee Key cases relating to the characteristics of guarantees Names of Parties: Moschi v Lep Air [1972] 2 All ER 393 Judgment Date: 26 April 1972 Case Summary: Leading authority confirming the secondary nature of a guarantee. A...
CASE HUB ARCHIVED This archived case hub sets out the position as at the judgment of 15 November 2013 and is no longer being maintained. For further details, see the timeline, commentary and related cases. Case facts Outline Global Radio Holdings Limited brought an appeal against the Competition Commission’s decision arising from the Global Radio/ GMG merger investigation, including the direction to sell seven radio stations. The appeal was dismissed by the CAT on 15/11/2013. Parties Global Radio Holdings Ltd ( Global) is a privately owned commercial radio company operating one national station ( Classic FM) and additional local stations under the Heart, Capital, Choice, LBC, Xfm and Gold brands. Global completed its acquisition of Real and Smooth Limited ( RSL), then known as GMG Radio Holdings Limited, on 24 June 2012. RSL operates local and regional radio stations broadcasting as Real, Real XS and...
Gategroup Guarantee Limited sought approval for a Part 26A restructuring plan ( RP), with the convening hearing in February 2021 and the sanction hearing in March 2021. The headline points are outlined below; unless stated otherwise, capitalised expressions have the meanings given in the convening and sanction judgments. This Deal Debrief forms part of our Restructuring plans collection. For an in‑depth review of key metrics from RPs submitted in 2023, together with insights from leading figures in the restructuring community, see Practice Note: Market Insights Trend Report—trends in Part 26A restructuring plans in 2023 [ Archived]. Name of plan company gategroup Guarantee Limited (the Company) Industry sector Food catering Place of debtor’s incorporation and jurisdictional factors The Company is incorporated in England and Wales. Although the Issuer was incorporated in Luxembourg, its centre of main interests ( COMI) had been moved to England......
This Practice Note sets out the offences of fraud by failing to disclose and fraud by abuse of position under sections 3 and 4 of the Fraud Act 2006 ( Fr A 2006). Each is a means by which the general fraud offence in Fr A 2006, s 1 can be committed. These offences are most often brought against professionals, fiduciaries, or those in positions of trust, or with a fiduciary relationship to the victim. Fraud by failure to disclose information An offence of fraud by failing to disclose is made out where a defendant: dishonestly withholds information from another when under a legal duty to reveal it, and intends to secure a gain for themselves or someone else, or intends to cause another a loss, or to expose them to the risk of loss Conduct falling within this...
This Practice Note outlines France’s approach to contesting the authority of arbitral tribunals before the French courts, as well as measures relating to anti-suit injunctions in the arbitration context. Please note that the French decisions cited below are not published by Lexis Nexis® UK... Challenging the jurisdiction of arbitral tribunals in France The applicable framework varies according to whether the objection is brought prior to, or following, the making of the arbitral award... Challenging the jurisdiction of arbitral tribunals before the arbitral award is rendered Under French law, until an award has been issued, it falls to the arbitral tribunal to decide if it has competence to adjudicate the dispute. This is the competence-competence principle. It is commonly viewed as comprising both a positive and a negative limb. Its positive limb is embodied in article 1465 of the French Code of Civil Procedure ( FCCP), which states that the...
This Practice Note outlines the principal steps a landlord must take to terminate a residential lease by forfeiture, on the basis that no security of tenure applies (for example, assured tenancy status does not). It addresses the pre-conditions to ending the lease, whether the tenant’s default is non-payment of rent, service or administration charges, or some other breach of covenant. The requirements are explained in detail in Practice Note: Statutory limitations on the landlord’s right to forfeit a long residential lease. This Practice Note is not a comprehensive guide to the recoverability of service or administration charges; for further guidance, see: Residential service charge disputes—overview. For a landlord’s guide to forfeiture in general, see Practice Note: How to forfeit a lease. Do preliminary checks Confirm that forfeiture is the most suitable remedy for the landlord. Verify the lease contains a forfeiture clause and that the right to...
This Practice Note considers the law and policy surrounding flooding in Scotland: offering a synopsis of legislation, policy, and the Flood Risk Management ( Scotland) Act 2009 ( FRM( S) A 2009) setting out how flood risk is managed and the responsibilities of various statutory bodies signposting guidance for developers on instances where flood impacts must be evaluated as part of due diligence exploring potential strategies to reduce flooding, alongside wider mitigation examining controlled activity licences Flooding can inflict severe harm on people and enterprises. The Scottish government has recognised the growing dangers and consequences of flooding across Scotland due to climate change, and has produced national policy and devolved law to address the effects of heightened flood risk in Scotland. These policies and legislation embrace catchment-scale, precautionary methods for managing flood risk and emphasise the need for flood management to regulate new development that could be...
This note explores the pivotal contribution of an expert witness in civil proceedings, examining why parties retain them and the practical questions that arise when choosing, instructing and collaborating with them, from initial selection through continued engagement. It underscores the need to support an expert in preserving independence before and throughout the hearing and trial. It also draws a clear line between the respective functions of expert advisers and expert witnesses. The purpose of an expert witness In civil litigation, an expert witness may perform one or two core tasks as required. Sometimes both are required; on other occasions, only a single task is needed. The simpler duty is to clarify a technical process or decode terminology from a specialised field that is relevant to the court’s determination of issues between the parties to litigation. Illustrations include describing how a building is...
NOTE—appeal lodged by Scania before the General Court in Case T- 799/17 ARCHIVED – this case hub captures the status as at the final decision on 27 September 2017 and is no longer updated. See the timeline, commentary and related cases. Case facts Outline European Commission Article 101 TFEU probe into a suspected cartel in the heavy and medium‑duty trucks market ( Case AT.39824). Latest development On 27 September 2017, the Commission adopted an infringement decision against the sixth truck manufacturer under investigation, Scania, imposing a fine of €880,523,000. Scania chose not to settle with the Commission. Parties MAN Volvo/ Renault Daimler Iveco (a subsidiary of Fiat) DAF Scania Background Dawn raids were conducted in January 2011 following an immunity request by MAN. A statement of objections was issued on 20 November 2014. On 19 July 2016, the Commission announced that five...
CASE HUB ARCHIVED This archived case hub records the position as at the decision date of 29 May 2013 and is no longer updated. See the timeline and related cases for more. Case facts Outline European Commission merger inquiry into the planned purchase by Syniverse of Mach ( Case M.6690). Latest developments On 29 May 2013, the Commission approved the merger, conditional on commitments. The commitments accepted by the Commission require the disposal of Mach’s Data Clearing ( DC) services and Near Trade Roaming Data Exchange ( NRTRDE) services within the EEA. The package will include the relevant infrastructure, enabling the buyer to supply DC and NRTRDE, as well as a full suite of additional roaming-related services demanded by customers......
CASE HUB ARCHIVED This archived case hub captures the position as at the decision dated 5 June 2014 and is no longer being maintained. For additional context, see the timeline and relevant/related cases. Case facts Overview of the European Commission’s merger investigation into Holcim’s proposed acquisition of Cemex West ( Case M.7009). The companies are among the leading suppliers of cement, ready-mixed concrete, aggregates and cementitious materials across Western Germany, Belgium, and parts of France and the Netherlands. Germany submitted an Article 9 referral request, which the Commission declined. Latest developments The Commission gave unconditional clearance to the deal on 5 June 2014. Germany’s Article 9 referral was refused on 6 January 2014 on the basis that the market affected by the transaction was not solely national in scope but spanned several Member States. The matter was opened for a phase II...
CASE HUB ARCHIVED This archived case hub sets out the position as at the judgment dated 5 October 2020 and is no longer updated. For more, see the timeline and relevant/related cases. Case facts Outline Following the Court of Justice’s ruling in Case C‑438/16, the matter was sent back to the General Court. That ruling addressed an appeal against the General Court’s earlier judgment, which had partly upheld a challenge to the Commission’s decision of 29 June 2011 ( Case SA.23364). The Commission had found that a guarantee granted to IFP was compatible with Article 107(3)(c) TFEU, provided IFP’s economic activities remained merely ancillary and were tied to its principal role of public research. Latest developments On 5 October 2020, the General Court delivered its judgment, dismissing the appeals in full as unfounded, save that it upheld IFP’s argument that the financial reporting obligations imposed were...
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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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