Legal Practice Notes

Be aware that the Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) took effect on 6 April 2022. Any proceedings issued by the court on or after that date fall under DDSA 2020 and the revised procedures in the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955. For more detail, see Practice Note: Introduction to the Divorce, Dissolution and Separation Act 2020. Matters issued on or before 5 April 2022 continue under the law as it stood before DDSA 2020. Such cases are unaffected by the commencement of DDSA 2020 or the associated procedural amendments. This document sets out the position for proceedings issued before 6 April 2022. As a result of DDSA 2020, amendments have been made, including to FPR 2010, Pt 7. To access historic versions of FPR 2010, Pt 7, and FPR 2010, Practice Direction 7A, as they applied to...

A claim can be started under: CPR 7—for further guidance, see Practice Notes: Claim form—the contents, Claim form—filing and issuing, and Drafting the particulars of claim CPR 8—for further guidance, see Practice Note: CPR Part 8 claims (alternative procedure for claims) Action following service of a claim In most cases, prior to commencing proceedings, the parties will have engaged with a pre-action protocol or traded pre-action correspondence, which will have provided the defendant with an opportunity to consider and prepare a response to the claim. For further guidance, see: Pre-action: general—overview. If that has not occurred, receipt of a claim form may catch the defendant unawares and compel it to address several issues promptly. This is the usual position in practice......

This Practice Note outlines examples of how a defendant may voluntarily accept the English court’s jurisdiction. It further considers whether there is submission where the court has required the defendant to act. For guidance on assessing if a party has submitted to the court’s jurisdiction, see Practice Note: Challenging court jurisdiction—has a party submitted to a jurisdiction? Service of the defence A defendant who serves a defence in the proceedings will ordinarily be treated as having submitted to the English court’s jurisdiction. An exception arises where the court orders the defendant to serve their defence. Compliance with that order is not treated as submission and so does not prevent the defendant from advancing a jurisdictional challenge. The authorities on this point were reviewed by the Court of Appeal in Deutsche Bank AG London Branch v Petromena ASA (2015). In Ablynx NV v Vhsquared (2019), the...

The simplest defence available to a trustee confronted with a breach of trust allegation is that the claim is baseless, for instance that no breach occurred, or that a breach occurred but no loss followed. Likewise, the claimant might fail entirely to prove any causal link between the alleged breach and the loss. In short, a failure to show breach, loss, or causation will be fatal to the case. Aside from these self-evident points, a range of other defences exists, depending on the facts at hand too. Consent by beneficiaries A beneficiary who consents to, or participates in, a breach will generally struggle to succeed in a claim, even if they receive no benefit from the wrongdoing. Nevertheless, a corporation may still bring a claim where some of its members have fraudulently and illegally exercised its powers (for example, in a pension trust setting) to...

Confiscation statement under POCA 2002 Typically, the defence will already have lodged a statement of means under section 18 of the Proceeds of Crime Act 2002 ( POCA 2002) before the prosecutor serves a Statement of Information under POCA 2002, s 16 (commonly called a section 16 statement). See: Confiscation timetable—checklist. The defence then has the chance to answer the section 16 statement pursuant to POCA 2002, s 17. That reply is intended to focus and reduce the matters to be determined at the confiscation hearing. If the defence does not make clear whether it contests any assertions advanced by the prosecution in its section 16 statement, the court may treat that silence as acceptance of those particular points. Accordingly, the section 16 statement must be reviewed with care and every area of disagreement should be identified within the defence response. It is also...

Financial and non-financial reporting duties vary between different categories of company. For further detail, see Practice Note: Financial reporting obligations of a company and its directors. For a high-level outline of the statutory reporting regime, consult Practice Notes: Accounts and reports—an outline of the statutory framework and Accounts and reports—individual and group accounts. A short summary of the process required to prepare, approve, publish and file accounts The summary below directs you to fuller guidance for each stage involved in preparing and filing company accounts: preparation of the accounts and reports — see Practice Note: Accounting records and the section Preparing the accounts and reports in Practice Note: Financial reporting obligations of a company and its directors approval and signing of the accounts and reports — see Approval and signing of accounts and reports in Practice Note: Financial reporting obligations of a company and its...

Defaulting lender provisions Borrowers aren’t the only parties that may encounter financial strain. If a lender fails to honour its funding obligations under a loan, the borrower might be unable to meet its own liabilities, with knock-on consequences for other lenders if the borrower’s repayment capacity is affected. The Loan Market Association’s ( LMA) recommended senior multicurrency term and revolving facilities agreement (compounded rate/term rate) for leveraged acquisition finance (the LMA leveraged facilities agreement), together with the other LMA leveraged finance forms, includes measures to address potential issues on syndicated facilities where a finance party risks non-performance. Although the LMA’s investment grade documentation does not feature these provisions, parties may choose to include them in other syndicated facility agreements. The LMA’s standard form documents are available to members via the LMA website. As only a small share of facility agreements contain defaulting lender...

ARCHIVED This Practice Note is archived and is not maintained. For the current position, see Practice Note: Obtaining default judgment—general principles— Conditions for a default judgment—the relevant time for filing has expired. A persistent issue for practitioners and the judiciary is whether default judgment can be entered where the acknowledgment of service or the defence is submitted late, yet arrives before the court determines the request/application for default judgment. There is, for now, no definitive resolution, although that will alter on 6 April 2020. Changes to CPR 12.3—6 April 2020 The meaning of CPR 12.3 has been clarified, with the amendments coming into force on 6 April 2020. These changes appear in the Civil Procedure ( Amendment) Rules 2020, SI 2020/82, r 3. The effect is that where an acknowledgment of service or a defence is filed before a judgment in default is entered, this will prevent the court from...

This Practice Note has been placed in archive and is retained for reference only. The defamation costs pilot scheme concluded on 31 March 2013. For guidance on costs budgeting, see: Costs budgeting and costs management—overview. What is it? The Scheme obliges participants in defamation actions (that is, actions involving allegations of libel, slander and/or malicious falsehood) to supply the court with a granular projection of forthcoming base costs (' Costs Budget'). Parties must keep these Costs Budgets updated routinely, after which the court will either sanction or decline them. In practice, they set the benchmark for future costs recovery, and the court will not deviate from an approved Costs Budget save for good reason. The Scheme’s purpose is to ensure the court holds sufficient costs information to manage the case so that the parties are on an equal footing and that the costs they incur are...

Three companies in the Deep Ocean Group applied for three Part 26A restructuring plans ( RP), with a convening hearing in December 2020 and a sanction hearing in January 2021. The principal points are outlined below (capitalised terms not otherwise defined take the meanings given in the convening and sanction judgments). This Deal Debrief sits within our Restructuring plans collection. For an in-depth review of key metrics from the RPs filed in 2023 and commentary from leading figures in the restructuring world, refer to Practice Note: Market Insights Trend Report—trends in Part 26A restructuring plans in 2023 [ Archived]. Name of plan companies Deep Ocean I Ltd ( DO1) Deep Ocean Subsea Cables Ltd ( DSC) Enshore Subsea Ltd ( ES) Together, the Plan Companies. Industry sector Subsea construction work Place of debtors’ incorporation and jurisdictional factors Each of the Plan Companies is...

Variations and other post-death rearrangements Although beneficiaries cannot, in truth, amend the terms of a testator’s Will or the rules that apply on intestacy, those who stand to inherit under the Will or intestacy may enter into an instrument or deed of variation (sometimes called a deed of family arrangement), or use another post-death rearrangement, to change the practical effect of the Will or intestacy. By using a variation, an original beneficiary can stipulate that any property which, under the Will or intestacy provisions, would otherwise pass to them should instead be redirected to another person or persons. Other common forms of post-death rearrangement include: disclaimers distributions pursuant to precatory trusts distributions from Will trusts claims under the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975) Parties often prefer a variation or other formal rearrangement after the testator’s death, rather than the original...

This Practice Note signposts material on the execution of deeds and simple contracts by administrators, administrative receivers, liquidators and other receivers, comprising guidance and sample precedent clauses. Administrators Execution formalities and clauses For guidance on the proper execution of deeds and simple contracts for administrators, see Practice Note: Execution formalities—administrators. For examples of execution clauses for administrators entering into: a......

This Practice Note This Practice Note sets out the method for seeking a decree nisi in nullity proceedings (an application for a matrimonial order) issued before 6 April 2022, and lists the requisite court forms used. It further provides outline of how to apply to set aside a certificate of entitlement, how to rescind a decree nisi, and when a rehearing is suitable. On 6 April 2022, the Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) took effect. Although DDSA 2020 does not alter the substantive law on nullity, it introduces consequential procedural amendments within the revised Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, which impact applications for nullity and orders of nullity of marriage that are issued on or after 6 April 2022. The updates relate chiefly to changes in terminology, refreshed forms and adjustments to the...

Proceedings issued prior to 6 April 2022 The Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) took effect on 6 April 2022. While it did not change the substantive law on nullity proceedings, it prompted consequential procedural updates under the amended Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, affecting applications for nullity and nullity of marriage orders lodged on or after 6 April 2022. The revisions focus mainly on terminology, refreshed forms, and amended provisions on service. In essence, they principally concern shifts in terminology, updated forms, and revised service provisions. For guidance on the procedure in cases issued on or after 6 April 2022, see the following Practice Notes: Commencing and filing nullity proceedings (post- DDSA 2020) Standard cases—nullity proceedings (post- DDSA 2020) Disputed nullity proceedings (post- DDSA 2020) Service of...

How has decision making in Northern Ireland been carried out since the passing of the Northern Ireland Act 1998? To answer this, recall the wider devolution framework for Northern Ireland. The Belfast Agreement envisaged not just a Northern Ireland Assembly, but also the creation of a North/ South Ministerial Council and a British- Irish Council. Under the Northern Ireland Act 1998 ( NIA 1998), law-making for specified ‘transferred matters’ is vested in the Assembly. ‘ Excepted matters’ remain the responsibility of the UK Parliament, while ‘reserved matters’ also stay there pending potential devolution at a later stage. As an illustration, policing and justice were in the reserved category until their devolution to the Assembly in 2010. See also Practice Note: The mechanics of devolution. Although an Assembly met in shadow form from 1998, full operation began in late 1999. It was then suspended for several months in 2000, on two...

The Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, set out a refreshed framework for decision-making across all insolvency processes from 6 April 2017. The specific mechanics appear in IR 2016, SI 2016/1024, Pt 15. Although IR 2016, SI 2016/1024 describes decisions to be taken by creditors and the steps creditors must follow, r 15.2(3) provides that these decision procedures also apply, with appropriate adjustments, to contributories where they are called upon to decide. Where a decision is sought from contributories, voting value is determined by the percentage of voting rights in accordance with IR 2016, SI 2016/1024, r 15.39... The qualifying decision procedures There are five procedures by which the person seeking a decision (the convener) may obtain one under sections 246ZE and 379ZA of the Insolvency Act 1986 ( IA 1986): by...

This Practice Note This Practice Note is aimed at in-house lawyers contemplating transferring certain legal work to external providers. It forms part of a broader suite of guidance and precedents created to support your outsourcing decision-making. It explains how to determine which legal services are appropriate for outsourcing. See also Practice Notes: Legal services outsourcing—in-house lawyers—information gathering Legal services outsourcing—in-house lawyers—outsourcing options Before selecting the services to outsource, you should already have assembled information about: what legal advice your organisation has previously relied upon what legal advice it is expected to require in the future, and the resources available within your legal team See Practice Note: Legal services outsourcing—in-house lawyers—information gathering. The next step is to evaluate which legal services you might consider outsourcing. This Practice Note is intended to prompt consideration of: key practical matters, including your aims in...

In England and Wales, non-consensual care and treatment for individuals with a mental disorder sit within two parallel legal frameworks: the Mental Health Act 1983 ( Me HA 1983) and the Mental Capacity Act 2005 ( MCA 2005). Their provisions frequently intersect, and navigating their interplay can be highly intricate. This Practice Note considers four key points at which the Acts meet: inpatient care and treatment informal admission deprivation of liberty in hospital community powers of Me HA 1983 While Me HA 1983 has no lower age threshold, MCA 2005 applies only from age 16. Accordingly, the interface arises solely for those aged 16 and above. This Note does not cover the position of children under 16. For guidance on deprivation of liberty concerning children, see Practice Notes: Children, deprivation of liberty and the inherent...

Practice Note This Practice Note outlines, in table form, the principal potential consequences of deception through omission or non-disclosure of relevant facts, as set out in the suitability grounds for refusal in the Immigration Rules and in statute. It addresses deception by omission or failure to reveal relevant facts in the following contexts: when applying for entry clearance, permission to enter, or permission to stay; and where an individual already has permission but, during examination by an Immigration Officer on entry, does not disclose a material fact (for example, a change of circumstances or purpose). It should be read alongside Practice Note: Duty of disclosure in immigration applications and interviews. Although Part Suitability of the Immigration Rules applies to the majority of routes, there are limited exceptions where it does not apply to certain parts or appendices, whether wholly or in part. The scope of...

This Practice Note on deceit claims sets out the elements required to pursue the common law tort of deceit: a false representation, an intention to deceive, reliance, and resulting loss. Deceit arises where a party knowingly makes a misrepresentation to defraud another, and that conduct causes loss to the victim. For further guidance on pursuing deceit claims, see: Deceit claims—pleading and standard of proof Remedies in deceit claims Deceit claim—what is it? Deceit occurs where a misrepresentation is made with the intention of cheating a party, and that intention later results in loss to that party. The common law tort of deceit is separate from, though closely aligned with, a claim in misrepresentation; see Practice Note: Deceit claims—pleading and standard of proof. Illustration— Connolly v Bellway Homes—property transaction In Connolly v Bellway Homes, the seller of development land secured damages from the buyer after relying on the...