Legal Practice Notes

What is an evidential specimen? After arrest on suspicion of an alcohol- or drug-related driving offence, police officers will ask the detainee to supply a sample of breath, blood or urine for analysis. The sample is termed an ‘evidential specimen’ because the analytical results are relied upon by the prosecution to establish a particular offence, for instance that the motorist was driving with excess alcohol in their system. An evidential specimen should be contrasted with a ‘preliminary test’. A preliminary test, such as a roadside police breath test, is carried out by police who suspect consumption of alcohol or drugs. Such testing is only indicative. To prove an offence like driving with excess alcohol, an ‘evidential specimen’ must be taken. The Deregulation Act 2015 ( DA 2015) removed the need for an officer to undertake a preliminary test where a portable...

Although every litigation funding agreement ( LFA), together with its ancillary papers, will differ according to the funder and the nuances of the funded matter being financed, there are core issues that must be addressed throughout the various negotiation stages of all litigation funding documentation. This Practice Note forms part of a series of short Practice Notes by Tanya Lansky and Tets Ishikawa, Managing Directors of Lion Fish Group Ltd, designed to give those negotiating and considering LFAs and their related documents a clearer grasp of the factors in play. Overriding objective Managing drawdown arrangements is an administrative task, often non-billed, and all too easily overlooked. Yet a well-defined drawdown procedure can conserve a substantial amount of time, costs and resources for all parties involved over the duration of an LFA. The principal objective of any drawdown process is to eliminate ambiguity and minimise...

The concepts of material adverse change ( MAC) and material adverse effect ( MAE) are deployed in distinct yet connected ways in a standard facility agreement. Material adverse effect Facility agreements typically include a defined term for material adverse effect. Its primary function is to qualify specified representations, undertakings and events of default. Material adverse change A material adverse change in the borrower’s circumstances is often treated as a separate event of default. This provision is routinely the subject of heavy negotiation, with variations in scope. A common formulation links the MAC event of default back to the MAE definition. The borrower is also required to represent—sometimes on a repeating basis—that no material adverse change has occurred to its business or financial condition since the date of the most recent financial statements delivered to the lender. The drafting of the material adverse effect definition determines both the reach of the...

This Practice Note examines the application of term risk‑free rates ( RFRs) in loan agreements. It addresses: what term RFRs exist and when they are appropriate Term Secured Overnight Financing Rate ( Term SOFR) and the Loan Market Association ( LMA) Facilities Agreements EURIBOR and Term €STR key considerations when deploying Term Sterling Overnight Index Average ( Term SONIA) For: guidance on using compounded RFRs in loan agreements, see Practice Note: Interest provisions in risk‑free rate based loan agreements background on interest in a facilities agreement and the types of rates available, see Practice Note: Introductory guide to interest in loan agreements our material in an easy‑to‑navigate interactive toolkit, see: toolkit an overview of the key issues in the LIBOR transition, see Practice Note: Introductory guide to LIBOR transition a list of...

The family home In many estates, the main residence represents a disproportionately large share of family wealth. This leads to several important issues: its value can, on its own, create a substantial IHT exposure and markedly increase the overall IHT burden there is a natural wish for the property to remain with a surviving spouse or with one or more children As the home’s value often results in an IHT charge, even where two nil rate bands are available, earlier years saw legal and tax practitioners devise arrangements to exploit gaps in tax law. HM Revenue and Customs have repeatedly countered these by introducing anti-avoidance rules to block such planning. Examples include the anti- Eversden provisions inserted by the Finance Act 2006 into section 102(5A)-(5C) of the Finance Act 1986 ( FA 1986) following the House of Lords decision in IRC v Eversden, and the anti- Ingram rules...

This practical guidance relates to the pre- Procurement Act 2023 regime This Practice Note offers guidance for public procurement exercises launched before the Procurement Act 2023 ( PA 2023) took effect on 24 February 2025. In-scope procurements that begin on or after that date are regulated by PA 2023. Under the Act’s transitional and savings provisions, the previous public procurement regimes continue to apply, to the extent necessary, to enable contracting authorities to finalise and manage procurements started prior to PA 2023 taking effect (ie ongoing procurements). This Practice Note should be considered in that light. For background reading, see Practice Note: Introduction to the Procurement Act 2023— PA 2023. practical guidance on PA 2023 is set out in a separate subtopic, see: Procurement Act 2023—overview. In-scope procurements begun on or after that date are governed by PA...

This Practice Note reviews the typical elements of take-or-pay provisions and includes illustrative clause wording. It also addresses the difference between take-or-pay provisions and take-and-pay provisions. For a primer on take-or-pay clauses within the energy industry, together with the recurring regulatory and competition law considerations, see Practice Note: An introduction to EU law and competition law issues for take-or-pay clauses in energy contracts. For further insight into the English courts’ approach to take-or-pay provisions, and a detailed analysis of take-or-pay clauses alongside the rule on penalties, see Practice Note: Take-or-pay clauses in energy contracts: the rule on penalties. Common features of take-or-pay clauses This section concentrates on take-or-pay terms in gas and LNG SPAs. Comparable characteristics are found in take-or-pay mechanisms across other energy-sector agreements. For additional background, see Practice Note: An Introduction to Oil & Gas Sales and...

This Practice Note This Practice Note highlights the principal points to weigh when shaping service levels, and the recourse for missing them, within outsourcing contractual arrangements. When preparing service level agreements ( SLAs), matters to consider include the category of service level, what is assessed, cost and quality, outputs and outcomes, the means of measurement, service credits and other remedies, earn back and performance incentives, and adjustments to service levels during the term. The precise measures and metrics adopted in SLAs will turn on the nature of the services. It is prepared to apply to any kind of outsourcing and does not specifically centre on IT services (though what is outlined here remains pertinent in that sphere). For IT‑specific service level material, see Practice Note: Key issues in Saa S and hardware/software maintenance SLAs and Precedents: Service Level Agreement...

The nature of a marriage trust A marriage trust is a settlement created in contemplation of marriage, established either: before the marriage takes place after the marriage where it gives effect to a pre-nuptial agreement made to settle When to consider using a marriage trust Marriage has long been a moment for creating a trust. These matters are often agreed. Usually, the couple first agree what should be settled before asking their advisers. Nowadays, it is common for only one party to settle the property......

This Practice Note gives high-level guidance on preparing a letter of claim. For more related material, including links to a selection of precedent letters of claim, see: Pre-action: general—overview Pre-action protocols—overview What is a letter of claim? A letter of claim—also known as a letter before action or pre-action letter—marks the opening step in litigation. It notifies the prospective defendant(s) that court proceedings are intended if the dispute is not resolved. Practically, it allows you to set out, with clarity, the grounds on which you say a claim arises and the actions the recipient should take to avoid formal proceedings, confined to remedies a court could award if the claim succeeded. A carefully crafted letter can, at times, prompt the other party to engage seriously and remove the need to issue proceedings. Failing that, it can frame the litigation that follows, so it should not be...

STOP PRESS From 24 February 2025, the core provisions of the Procurement Act 2023 ( PA 2023) have taken effect. Competitions started on or after that date must proceed under PA 2023, while procurements commenced under the earlier regime ( Public Contracts Regulations 2015, Utilities Contracts Regulations 2016, Concession Contracts Regulations 2016, and Defence and Security Public Contracts Regulations 2011) must continue to be run and administered under those rules. The Cabinet Office has refreshed its suites of standard contract documents, templates and guidance for the government’s Model Services Contract, Mid‑ Tier Contract and Short Form Contract. These revised materials were released to coincide with the PA 2023 “go‑live” on 24 February 2025. This Practice Note will be revised shortly to take account of these changes. For further detail, see: News Analysis: Procurement Act 2023 “go live”—what happens next?, and Government model contracts updated for...

This Practice Note outlines the terms typically found in a partnership agreement for partnerships established under the Partnership Act 1890. It provides an overview of the statutory default rules that operate where no agreement exists, alongside the clauses commonly adopted in a partnership agreement. Partners are, in almost every case, advised to put a partnership agreement in place, so as to prevent the application of unsuitable default rules under the Partnership Act 1890 ( PA 1890), or to augment the statute where it does not go far enough. The PA 1890 expressly contemplates that all partners may, by unanimous consent, vary their statutory rights and obligations......

This Practice Note reviews the key issues a franchise agreement ought to cover, notably clear definition of the franchisee’s rights and the applicable territory, whether the grant is on an exclusive basis, thorough attention to sales targets and development plans, and the licensing of intellectual property together with the availability of trade names and domain names. It also underlines the need for a carefully drafted manual and the principal topics that manual should address. While the structure and content resemble a distribution (reseller) agreement, a franchise agreement places much greater emphasis on day‑to‑day operation to secure uniformity and consistency. The principal matters include: Scope of rights and territory Exclusivity of the franchise Sales targets and development planning IP licensing, trade names and domain names Quality and content of the operational manual Grant of rights The agreement should set out the rights...

When preparing contracts, attention often centres on negotiating the core clauses, with an assumption that schedules merely house supplementary material, like agreed templates and security instruments (eg bonds and guarantees) that sit alongside the primary terms and conditions. In an FM agreement, however, the schedules are anything but secondary; they are fundamental components, capturing the detailed evidence of the client’s needs and shaping both parties’ expectations on price and performance. They hold the particulars that substantiate the client’s requirements and steer commercial and performance assumptions. The degree to which schedules are deployed in FM arrangements varies in practice, driven by the complexity and breadth of the services to be delivered. Accordingly, their scope and granularity should reflect the nature and extent of the services being undertaken. A project-by-project review should always determine which schedules are necessary and the level of detail...

Environmental, social, governance ( ESG) policy An ESG policy is the centrepiece of an organisation’s ESG strategy. It serves as a succinct statement of intent from an ESG perspective, setting out at a high level the focus areas and the commitments to be pursued. Some pledges will relate to processes, for example ensuring ESG factors are built into business decision-making and, for financial institutions, into investment decision-making or a Responsible Investment Policy. Others may concern defined ESG topics, such as adopting Net Zero, Zero Waste or Zero Harm targets. It can also reference the organisations, frameworks and/or regulations that have informed the approach or to which it is committing. For more on ESG, see the following Practice Notes: ESG—new starter guide Sustainable business and environmental, social, governance ( ESG)—introduction for companies and advisers ESG and...

This guide helps organisations make sure emissions-cutting goals and the measures set out in transition plans are embedded within contracts and legal papers, and establish enforceable......

This Practice Note highlights specific issues to bear in mind when preparing common forms of contractual joint venture arrangements. For broader guidance, refer to Practice Note: Drafting a contractual joint venture agreement. Consortium bids Parties' obligations The primary duty of every participant is to deliver a comprehensive, fully costed proposal for its allocated element of the project by the stated date, aligning with the third-party client’s requirements or the standards set out in the bid agreement. The parties typically also commit to lodging the overall bid by an agreed deadline, and to doing so within the timeframe stipulated. Clients often seek clarification on aspects of the submission, so each consortium member is commonly bound to furnish whatever additional information the client requests, as required during the bidding phase. It is also not uncommon, while tendering is under way, for the client to adjust the project...

This Practice Note outlines the principal considerations when preparing contracts for schemes falling within the Building Safety Act 2022 ( BSA 2022), and in particular the regime for ‘higher-risk’ buildings. It addresses a range of matters including the lengthened time limits for pursuing claims under the Defective Premises Act 1972 ( DPA 1972), the extra regulatory oversight introduced for the pre-construction and construction phases and at completion, and the obligations imposed on ‘dutyholders’ under both BSA 2022 and related secondary legislation, as well as more generally under the Building Regulations 2010, as amended. Drafting points to consider where the employer is a member of the Responsible Actors Scheme are also covered. For a fuller summary of BSA 2022, see Practice Note: Building Safety Act 2022—key provisions and issues, and for guidance on which categories of buildings fall within the ‘ Higher- Risk...

This Practice Note focuses primarily on the commercial context, rather than the strict legal framework, when preparing consumer standard terms and conditions governed by the Consumer Rights Act 2015 ( CRA 2015). In addition to offering concise information on the applicable consumer legislation (with references to relevant Practice Notes), it also considers the business environment in which the terms operate and how lawyers can add value to both the documents and the businesses they advise. For our suite of business-to-consumer ( B2C) template contracts and drafting guidance, see ‘ Drafting contracts with consumers’ in: Trading with consumers—overview and Drafting consumer contracts—checklist. For guidance on drafting boilerplate provisions in B2C contracts, see Practice Notes: Boilerplate clauses in business-to-consumer contracts—general principles and Boilerplate clauses in business-to-consumer contracts—specific...

Boilerplate provisions in public sector contracts This Practice Note examines audit clauses within public sector agreements. For additional insight into what contracting authorities (and other interested parties) should understand when deploying boilerplate terms in public sector agreements, see Practice Note: Boilerplate provisions in public sector agreements: general considerations. Public procurement reform The Procurement Bill secured Royal Assent on 26 October 2023, becoming the Procurement Act 2023 ( PA 2023). See: Procurement Bill [ HL]— LNB News 12/05/2022 14 and Procurement Bill receives Royal Assent— LNB News 26/10/2023 81. From 24 February 2025, the principal provisions of PA 2023 are in force, and procurements initiated on or after that date must proceed under PA 2023. The existing public procurement regime—including the Public Contracts Regulations 2015 ( PCR 2015) and Procurement Practice Notes ( PPNs), the Utilities Contracts Regulations 2016, the Concession Contracts Regulations 2016, and the Defence and...