Legal Practice Notes

This Practice Note sets out how cultivating and advancing home-grown talent benefits a firm, preserving critical skills and knowledge in-house while serving as a strong incentive for ambitious, capable individuals. Recruitment is both expensive and protracted, especially for senior appointments—growing leaders internally can be markedly more time- and cost-efficient. This Practice Note covers: how to spot potential coaching and development for leaders personal development plans for future leaders delegation succession planning How to spot potential The key question to pose is: which leadership capabilities do we need now, and which will we require in future? Be crystal clear about the qualities you seek before you begin to look for them. Key skills required of leaders include the ability to: drive and manage change spot and nurture emerging talent encourage creativity and innovation coach and develop...

This Practice Note sets out what personal branding is and why creating and sustaining a strong, authentic personal brand matters for leaders. Branding—personal or otherwise—is not identical to reputation, though the two ideas are closely connected: branding—the ongoing process of shaping a consistent image or impression in others' minds of an individual, group or company reputation—the beliefs or views that other people hold about someone or something Personal branding It was once true that only products carried a brand; yet, with the rise of social media, the notion of people cultivating their own brand has accelerated. Actively managing your personal brand is now crucial. How others see you genuinely counts. A robust, honest personal brand helps anyone seeking to make an impact and should be a central priority for leaders or those aspiring to lead. Recruiters will scrutinise your digital footprint, from...

This Practice Note sets out detailed guidance on creating a learning and development ( L& D) policy. It examines the main considerations to be taken into account, such as: what an L& D policy is who holds responsibility for the L& D policy mandatory regulatory or statutory obligations to be met defining the policy’s scope and content clarifying the policy’s aims methods to develop, draft and put the L& D policy into practice alignment with wider business objectives, and reviewing the L& D policy Specific SRA requirements for training contracts fall outside the scope of this Practice Note and are not addressed here. What is an L& D policy? An L& D policy sets out the organisation’s stance and expectations on developing its people. It typically addresses key areas including training standards, scope, priorities, and the routes by which employees access L& D. An L& D policy differs from an L& D plan, a...

Protected areas and protected sites Under section 55(1) of the Town and Country Planning Act 1990 ( TCPA 1990), development is taken to include carrying out building, engineering, mining or other works in, on, over or beneath land, as well as any material change to the use of buildings or other land. Anyone who has acquired, or is considering acquiring, land for development, or who plans to undertake development activity, must first assess whether the land is a protected site or supports protected species. It is the developer’s duty to establish whether proposed works could impact a protected area or site. They should check, in advance, whether their proposals are likely to affect any such areas or sites at all. Protected areas and protected sites include: national parks—areas designated for their natural beauty and for the opportunities they provide for open-air...

Background and the Responsible Actors Scheme In the years after the Grenfell Tower disaster, the government stated it would hold the construction sector to account for behaviours that had led to fire safety flaws in homes, and would require those responsible to help ‘put right the problems they had caused’. To that end, in January 2022, the Secretary of State for Levelling Up, Housing and Communities ( DLUHC), Michael Gove, sent a letter to residential property developers, asking them to commit to remedy, or fund the remediation of, historic fire safety defects for which they were answerable (see: LNB News 10/01/2022 32). In April 2022, DLUHC asked leading residential developers to sign a pledge confirming the principle that leaseholders should not bear any costs linked to life-critical fire-safety remediation arising from the design, construction or refurbishment of buildings 11 metres and higher. By...

CASE HUB ARCHIVED This archived case hub sets out the position as at the judgment dated 9 March 2015; it is no longer updated. See further: timeline, commentary and related/similar cases Case facts Appeal to the General Court seeking annulment of the Commission decision of 1 February 2012 that blocked the merger between Deutsche Börse and NYSE Euronext ( Case COMP/ M.6166— Deutsche Börse/ NYSE Euronext). On 9 March 2015, the General Court dismissed the action in full. Outline The matter is notable as it involves a prohibition decision by the Commission—an infrequent outcome—and is particularly striking given the transaction was cleared by the US authorities. It further illustrates the difficulty of attempting to rescue otherwise problematic mergers through efficiency arguments. Parties Applicant: Deutsche Börse AG ( Deutsche Börse) Defendant: European Commission Deutsche Börse is a German-based group active across cash and derivatives markets. It runs the Frankfurt Stock Exchange and holds a...

CASE HUB ARCHIVED – this archived case hub reflects the position at the date of the judgment of 6 September 2013; it is no longer maintained. See further: timeline, commentary and related/relevant cases Case facts ARCHIVE—06/09/2013 Outline Appeals to the General Court were lodged by Deutsche Bahn and various group companies contesting the Commission’s decision of 14 March 2011, which authorised surprise inspections at Deutsche Bahn sites on 29 March 2011, together with later decisions permitting further searches. On 6 September 2013, the General Court rejected the actions in full. The dispute centres on the breadth of the Commission’s investigatory powers when ordering and conducting unannounced inspections, and on the procedural protections afforded to undertakings under scrutiny. Parties Applicants: Deutsche Bahn AG ( Deutsche Bahn) and several subsidiaries Defendant: European Commission Deutsche Bahn is a global undertaking based in Germany, operating in domestic and...

Introduction The Waste ( England and Wales) Regulations 2011, SI 2011/988 ( Waste E& W Regs 2011), represents a significant waste law, although not the only one. It brought many of the requirements of the Waste Framework Directive 2008/98/ EC, as amended ( WFD 2008), into domestic legislation within England and Wales......

Where does the value break? Early in restructuring talks, the parties commission valuations of the business to identify where the value breaks (see Practice Note: Types of valuation for R& I lawyers). That valuation shows: which tranche(s) of debt is impaired which creditors are plainly out of the money and therefore have no place at the restructuring table which creditors sit close to the break and may contest the valuation the probable division between equity and debt instruments in the company after the restructuring who will be asked to inject further funds in return for a post-restructuring stake which creditors may wish to buy out the senior creditors to avoid enforcement and the resulting impairment of their debt Creditors in the tranche at the value break will generally expect a larger slice of equity in the restructured entity, compensating their impairment and encouraging them to back a...

This Practice Note offers practical guidance on assessing whether domestic sales are not in the ordinary course of trade. Investigating authorities apply this test when establishing the normal value or the domestic selling price. Introduction To decide if dumping has occurred, an investigating authority must compare the normal value (or domestic selling price) with the export price. The WTO’s Anti-dumping Agreement sets out three methods for determining the normal value, namely: domestic prices exports to third countries constructed normal value The first and preferred approach is to utilise the domestic price, being the price at which the like product is sold, in the ordinary course of trade, on the exporting Member State’s domestic market. This approach presumes that domestic sales do exist and that such transactions are made in the ordinary course of trade. Importantly, relying on domestic prices (or domestic sales in the exporting country) as the basis for...

This Practice Note offers practical guidance on establishing the normal value in anti-dumping investigations. It therefore explains the three bases used to set that value: the domestic selling price, the export price to third countries, and the constructed normal value. These benchmarks are used in practice when determining normal value. Introduction The WTO’s Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the Anti-dumping Agreement) provides that a product is dumped when the export price is below the normal value. Accordingly, in the ordinary course of trade, dumping exists only where the export price is lower than the normal value for the product in question. It is consequently essential that both the normal value and the export price of the specific product (the like product) are identified to determine whether dumping actually occurred. In practice,...

Applications in the King’s Bench Division Where a case proceeds in the King’s Bench Division ( KBD), any application you make is governed by the King’s Bench Guide. This Practice Note offers direction on applications in the KBD by pointing to the relevant parts of the King’s Bench Guide. Its focus is on how the court determines applications in the KBD—either at a hearing or on the papers—rather than the steps for making an application or getting ready for an application hearing. For guidance on other elements of KBD application procedure, see: Making an application in the King’s Bench Division ( KBD) Preparing for an application hearing in the King’s Bench Division ( KBD) The following general points should be noted: The King’s Bench Guide provides practical material about KBD proceedings, but it is not a replacement for the CPR and must be read...

This Practice Note sets out practical guidance for establishing the export price in anti-dumping investigations. It explains how to apply the actual export price as well as a constructed export price where appropriate, too. Introduction The World Trade Organisation’s ( WTO) Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the Anti-dumping Agreement) provides that a product is dumped when the export price is lower than the normal value. Accordingly, in the ordinary course of trade, the export price must be below the normal value. It is therefore essential that both the normal value and the export price of the specific product (the like product) are identified to assess whether dumping has in fact occurred. In practice, investigating authorities typically determine the normal value of the like product first. Indeed, Article 2 of the...

This Practice Note sets out detailed guidance for parties engaged in business-to-business dealings to help them assess whether they act as an independent controller, a joint controller, or a processor under the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR). For higher-level introductions to data protection, see Practice Notes: Data protection law—new starter guide and The UK General Data Protection Regulation ( UK GDPR)— Summary of key legislation. The UK data protection law collection brings together further general guidance on data protection and is a recommended first port of call for data protection research. In brief UK data protection law aims to ensure information relating to living people (within the meaning of ‘personal data’) is handled fairly and responsibly. To achieve this, UK data protection laws place extensive duties on those ‘processing’ personal data (and on those...

Relationships between the different applicable law regimes This Practice Note outlines the various applicable law frameworks that the courts in England and Wales may use. Which framework applies turns on whether the dispute is contractual or non-contractual, and on timing: the date the contract was concluded or, for a non-contractual claim, the date of the harmful event. Each framework contains intricate rules that the court must apply when identifying the governing law. In most matters, distinguishing between a contractual claim and a tortious claim will be straightforward. Where it is not, the crucial task is to analyse and classify the obligations in issue, i.e. whether they are ‘contractual’ or ‘non-contractual’. That characterisation then fixes the regime to be used. This can be outcome-determinative if the law identified under a contractual regime differs from that produced under a...

THIS PRACTICE NOTE APPLIES ONLY TO DEFINED BENEFIT AND HYBRID OCCUPATIONAL PENSION SCHEMES Purpose of admissible rules During an assessment period, trustees must run the scheme and provide benefits to members in line with the scheme’s admissible rules, as defined in paragraph 35(2) of Schedule 7 to the Pensions Act 2004 ( Pe A 2004). The Pension Protection Fund ( PPF) issued guidance for trustees on applying those admissible rules during the assessment period, with examples, in the Appendix to the Financial Management section of its Detailed Trustee Guidance. This material was archived when the PPF changed its website in December 2018, but it remains helpful for understanding what counts as an admissible payment. At the end of the assessment period, if the PPF takes responsibility for the scheme and the scheme enters the PPF, the PPF will provide compensation to members and their...

Sanctions are designed to exert significant impact on the people, entities and regimes at which they are aimed. Consequently, there is an attendant danger that those designated will try to sidestep their effect. Grasping the risks of becoming entangled in sanctions evasion, and the warning signs and red flags to watch for, should be integral to your screening. You need not act as law enforcement, but, given the strict nature of your liability for any breach, you must stay vigilant. This Practice Note outlines risks and indicators of sanctions evasion, along with sound practices and steps to take if you are concerned. Risks of sanctions evasion Failing to notice an attempt to circumvent sanctions can put you yourself in breach, eg if you end up handling the funds of, or supplying services or other assistance to, an individual who is designated. It could also...

This Practice Note offers a concise outline of the principal considerations relating to detailed assessment. Use it as a starting guide and read it alongside the following Practice Notes, which provide fuller, more detailed coverage: Detailed assessment—what is it, who does it and where? Detailed assessment—commencement Detailed assessment—the hearing Detailed assessment—costs, settlement and agreement What is detailed assessment? A detailed assessment is the process by which the court decides what sum the paying party must pay the receiving party for litigation costs. It applies where the parties cannot reach agreement on costs and where a summary assessment is not suitable. For an introduction to summary assessment and the circumstances in which it is undertaken, see: Summary assessment—overview. The framework for detailed assessment is set out in CPR 47 and CPR PD 47. As a general rule, the costs of the proceedings (or any part of them) are not...

For direction from the Senior Court Costs Office ( SCCO) on how detailed assessment hearings are to be conducted within that court, refer to Practice Note: SCCO guidance for detailed assessment from 1 August 2020. That Practice Note outlines matters to bear in mind when handling a detailed assessment within the SCCO. It covers making a request for a hearing and the ramifications of not doing so. It explains what occurs after the request is filed up to the hearing itself, including any potential applications that may arise during that period. As regards the hearing, it addresses who may speak to the court and in what capacity. It also considers how privileged documents are to be treated. The Practice Note should be read alongside: Request for detailed assessment—checklist and Practice Note: Costs and...

This Practice Note explores the relationship between costs budgeting and detailed assessment, with particular emphasis on CPR 3.18, which sets out how the court will approach standard basis assessments in cases where a Costs Management Order ( CMO) has been made and where one has not been made. For matters in which a CMO exists, three core considerations are identified: the significance of the most recent approved or agreed costs budget; whether there is ‘a good reason’ to deviate from the figure allowed at the costs management hearing; and the relevance of any court observations regarding incurred costs. What is costs budgeting and detailed assessment Detailed assessment pre-dated the introduction of costs budgeting. When budgeting was brought in, no specific guidance clarified how the two should interrelate, and the authorities were inconsistent. Accordingly, care is needed when relying on earlier...