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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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Overview This Practice Note outlines key characteristics of covenant loose and covenant lite financings and considers certain risks that investors in these facilities may encounter. It assumes a degree of familiarity with leveraged finance terminology and documentation. For introductory material on leveraged finance financial covenants, see Practice Note: Leveraged finance—financial covenants. For an introductory guide to acquisition finance, see Practice Note: Introductory guide to acquisition finance. The Glossary of acquisition finance terms and jargon may also be helpful... Terminology Traditional ‘covenanted’ facility European leveraged facility agreements have traditionally included a package of financial covenants designed to monitor the borrower‑group’s financial performance against a base case financial model. The full suite typically comprises the following covenants: Leverage — this is the ratio of the group’s total [net] indebtedness to its earnings before interest, tax, depreciation and amortisation ( EBITDA ). The leverage ratio gauges the group’s...
This Practice Note outlines significant and illustrative rulings in which the court has promoted or compelled the parties to contemplate or participate in alternative dispute resolution ( ADR), such as mediation, with a view to settling their civil dispute. It should be read alongside Practice Note: Court powers to order or encourage ADR in civil proceedings, which explains parties’ duties to consider ADR and the courts’ powers to direct or promote consideration of ADR, both pre-action and during proceedings. Note that, from 1 October 2024, the Civil Procedure Rules ( CPR) were revised to confer further powers enabling the court to require parties to use ADR, and to give added guidance on costs where parties breach an ADR order or unreasonably refuse to engage in ADR. The amendments appear in The Civil Procedure ( Amendment No 3) Rules 2024, SI 2024/839, together with...
This Practice Note outlines the roles, authority, duties and liabilities of court-appointed receivers designated under the Proceeds of Crime Act 2002. For further explanation on these types of receiverships generally, refer to Practice Note: Court-appointed receivers—when a court will appoint a receiver and who may be appointed. Powers Where a receiver is appointed under s 48 of the Proceeds of Crime Act 2002 ( PCA 2002) following a Restraint Order made under that section, the court making the order may confer the following powers on the receiver: take possession of the property manage or otherwise handle the property commence, continue or defend any legal proceedings relating to the property realise sufficient property to meet the receiver’s remuneration and expenses Receivers appointed under ss 48 and 50 PCA 2002 may, by order of the court, enter any premises in England and Wales to: ...
Civil justice reform See our Practice Note, Civil justice reform in Scotland—virtual hearings and electronic submission of documents, for authoritative guidance on the current rules and practice in the Scottish civil courts concerning virtual hearings and the electronic signing, secure transmission and lodging of documents. This Practice Note supplies practical and procedural guidance on ordinary actions proceeding in the Court of Session. For information on: substantive and procedural matters to consider before commencing a civil action in the Scottish courts, including the jurisdiction of the Court of Session, see Practice Note: Starting a civil claim in Scotland the role of the Court of Session, how it is constituted and the binding nature of its judgements, see Practice Note: Civil court structure in Scotland Key: RCS— Rules of the Court of Session 1994 What is an ordinary action? An ordinary action is one that follows the...
This Practice Note sets out a practical overview of the first actions a property and affairs deputy should take once appointed... Checking and understanding the deputyship order The deputy must review the deputyship order promptly and become fully familiar with its terms so they know precisely which decisions they are authorised to make for the protected person ( P). For wider guidance on a deputy’s powers, see Practice Note: Deputyship—the deputy’s duties and powers... If any mistakes are identified, steps should be taken swiftly to correct them. Minor issues, such as a misspelt name, can usually be resolved informally with the Court of Protection... Where there are more significant errors, the deputy should file a COP9 application within the proceedings... If the court is not notified of errors within 21 days of the date the order was sent, the deputy may have to pay for a...
The position of Court of Protection Visitor is longstanding, having operated under the Mental Health Act 1983 as the ‘ Lord Chancellor’s Visitors’, and is also recognised by the Mental Capacity Act 2005 ( MCA 2005). The MCA 2005 Code of Practice explains that a Court of Protection Visitor is appointed to report to the Court of Protection on the way attorneys or deputies are performing their duties. They have been characterised as ‘the eyes and ears of the court’ and are particularly vital where there are no relatives or friends to act as a deputy or to raise issues with the court... Appointment and qualifications Court of Protection Visitors are not officers of the court, although their appointment is made by the court. Under MCA 2005, s 61, there are two categories of Court of Protection Visitor: A Special Visitor, who must be a...
The Court of Protection Rules 2017 ( COPR 2017), SI 2017/1035 The Court of Protection Rules 2017 were placed before Parliament on 30 October 2017 and took effect on 1 December 2017. They repeal the Court of Protection Rules 2007, SI 2007/1744, together with the amending rules of 2009, 2011, 2015 and 2017, and replace them with a single consolidated code... SI 2009/582 SI 2011/2753 SI 2015/548 SI 2017/187 ARCHIVED: This archived Practice Note is not maintained and is provided for background purposes only. The rules largely consolidate prior amendments made since COPR 2007, including last year’s pilot case management provisions. Procedures arising from the transparency and section 49 pilot schemes will be implemented through new practice directions... The principal alteration is a renumbering to mirror the structure of the Civil Procedure Rules 1998 ( CPR 1998), SI 1998/3132, the Family...
The principles The decision maker must first consider the principles set out in section 1 of the Mental Capacity Act 2005 ( MCA 2005), namely: the vulnerable person ( P) is to be presumed to have capacity unless it is demonstrated that P lacks it P must not be treated as unable to decide unless all practicable steps to assist P have been taken without success P is not to be regarded as incapable merely because P makes an unwise choice any act done, or decision made, under the MCA 2005 for or on behalf of a person who lacks capacity must be carried out in that person’s best interests before acting or deciding, regard must be had to whether the aim can be effectively met in a way that is less restrictive of P’s rights and freedom of...
The powers of the Court of Protection The Court of Protection is empowered to make one or more decisions about the personal welfare of a person who lacks capacity ( P) to make those decisions themselves. It can also appoint a deputy to take such decisions (see Practice Note: Choosing the deputy for further details), though health and welfare deputies are relatively seldom appointed, for the reasons articulated by Hayden J, then Vice- President of the Court of Protection, in Re Lawson, Mottram and Hopton (appointment of personal welfare deputies). For commentary on that ruling, see Case Analysis: Principles governing the appointment of personal welfare deputies ( Re Lawson; Re Mottram; Re Hopton). A recent application of the Lawson principles led to the appointment of a personal welfare deputy—see Case Analysis: Court of Protection—when is the criteria for appointing a Personal Welfare Deputy met ( Parr v...
Although the Court of Protection (the court) may issue a single order for someone who lacks capacity in a given case, that route is not invariably the most suitable on the facts. Where it is not, the court may direct that a deputy be appointed, if required, to handle the particular matter or to manage affairs on a continuing basis, as needed, especially if the incapacity is expected to persist. The court’s statutory authority to appoint a deputy arises under section 16 of the Mental Capacity Act 2005 ( MCA 2005). This Practice Note outlines the steps for making an initial application to appoint a health and welfare deputy. For guidance on applying to appoint a property and affairs deputy, which has operated an upfront notification process since January 2023, see Practice Note: Application to appoint a property and financial affairs...
For anyone appointed by the Court of Protection to serve as a deputy for property and financial affairs or for health and welfare, whether acting as a lay deputy or a professional deputy, an annual return must be submitted to the Office of the Public Guardian ( OPG). The OPG now scrutinises the way deputies report and their obligation to account for every transaction. Of note to professional deputies is the OPG’s growing collaboration and information sharing with the Senior Courts Costs Office ( SCCO), the authority that decides what a professional deputy may charge. In this Practice Note, references are made to ' P', 'the protected person' and 'the client', reflecting the terminology used within the applicable legislation or guidance. In each instance, these terms denote the person for whom the deputy has been appointed. That terminology is used...
When P’s personal injury or clinical negligence claim settles, or an interim payment is received, the deputy must decide how to invest the compensation most effectively and prudently. Standard 4(d) in the updated Deputy Standards Policy, issued by the Office of the Public Guardian ( OPG) in February 2023, also requires property and financial affairs deputies in this role to pursue the best attainable return on savings with minimal risk, wherever reasonably possible, and to optimise the management of P’s estate using appropriate, cost‑effective measures at all times. Further detail for professional deputies on Standard 4(d) appears in the Deputy Standards— Guidance for Professional Deputies, also published by the OPG in February 2023. Following the judgment in Re ACC, a professional deputy should take care to avoid any potential conflict of interest if proposing to appoint an associated company to manage P’s...
This Practice Note covers two forms of court procedure that arise in deprivation of liberty cases: applications brought where the legality and validity of a person’s detention under the deprivation of liberty authorisation process is called into doubt or dispute applications that a public authority may issue seeking authorisation to deprive a person of liberty beyond the ambit and outside the scope of the regime set out in Schedule A1 to the Mental Capacity Act 2005 ( MCA 2005) Both categories of procedure lie outside allocation to case pathways, as each is governed by their own distinct procedural requirements and rules. Note: at the time this note was prepared, the Court of Protection is reviewing the route for obtaining judicial authorisation of deprivation of liberty......
Introduction The authority of the Court of Protection (the court) derives from the Mental Capacity Act 2005 ( MCA 2005), and the way in which that authority is exercised is directed by the Court of Protection rules, alongside related practice directions. MCA 2005 broadened the court’s remit and, from 1 October 2007, it may determine issues about an individual’s personal welfare and health care, in addition to continuing to address that person’s property and financial affairs as before. The court will usually not intervene unless there is a dispute, or an inability to reach a decision on a particular matter, because in most situations an appointed deputy will be present to make the decision that is required. Nevertheless, even where a deputy has been appointed, there will be occasions when their position needs clarification or when some further practical assistance is sought......
Use the link below to obtain the training presentation. Contents Overview of the Court of Protection and the landscape prior to the Mental Capacity Act 2005 Relevant statutes and procedural rules Primary role of the Court of Protection Principal powers exercised by the Court of Protection Decisions concerning property and financial matters Decisions relating to health and welfare Guiding principles underpinning Court of Protection decisions Responsibilities and authorities of deputies Support services......
The Court of Protection Rules 2017 ( COPR 2017) carry an overriding aim of enabling the court to determine cases fairly and at proportionate cost, reflecting the principles within the Mental Capacity Act 2005 ( MCA 2005). Under COPR 2017, r 1.3, the Court of Protection has a duty to manage cases actively by, among other matters: considering the most suitable case pathway for the proceedings; and ensuring allocation to an appropriately levelled judge (or authorised court officer) and, so far as possible, preserving judicial continuity Allocation to case pathways COPR 2017, r 3.9 provides for assigning cases to case management pathways. There are three such pathways: the personal welfare pathway the property and affairs pathway the mixed welfare and property pathway Each case should be placed on one of the above pathways on issue unless it falls within these...
New Practice Direction/ Rules Fresh Practice Directions and, in certain instances, substitutions to the Court of Protection Rules 2007 came into force on 1 July 2015. Following the Court of Protection ( Amendment) Rules 2015, the Court of Protection forms were amended and a suite of new forms was also brought in from 1 July 2015... Practice Direction 2A— Participation of P Effective from 1 July 2015, this Practice Direction aims to secure P’s meaningful involvement in proceedings and to ensure the court is fully apprised of P’s circumstances, whilst avoiding undue delay and unnecessary expense. It references a new Rule 3A, also operative from 1 July 2015, which requires the court to consider whether to issue directions: for P to be joined as a party or for P to be represented by an accredited legal...
Cases C-90/15 P Hansen & Rosenthal and H& R Wax Company Vertrieb v Commission, C-94/15 P Tudapetrol Mineralölerzeugnisse Nils Hansen v Commission and C-95/15 P H& R Chem Pharm v Commission ( Candle waxes cartel) [ Archived] CASE HUB (date of judgments—16/02/2017) See also: timeline and related/relevant cases. Case facts ARCHIVED This archived case hub captures the position as at the decision of 16 February 2017; it is no longer maintained. Outline These appeals targeted General Court rulings that upheld the Commission decision of 1 October 2008, which found breaches of Article 101 TFEU and Article 53 of the EEA Agreement and levied combined fines of €36m on the Hansen & Rosenthal/ Tudapetrol group for alleged involvement in an EU‑wide paraffin waxes cartel (the ‘ Candle waxes cartel’). On 16 February 2017, the Court of Justice rejected the appeals in...
CASE HUB ARCHIVED This archived case hub records the position as at the judgment dated 21 January 2020 and is no longer maintained. See the timeline, commentary and related/relevant cases. Case facts Outline Case C-274/14 Banco de Santander — a national reference from Spain seeking guidance on whether rules allowing tax amortisation of financial goodwill accord with EU State aid rules. Latest developments On 21 January 2020, the Court of Justice handed down its judgment, finding the questions referred inadmissible on the ground that the TEAC was not ‘a court of tribunal’ for the purposes of Article 267 TFEU. Parties Banco de Santander ( Santander) Market Tax amortisation of financial goodwill. Background to reference The case primarily concerns the interpretation of Commission Decision 2011/5 EC of 28 October 2009, addressing the State aid element of a special tax regime enabling amortisation of financial goodwill arising from acquisitions of foreign...
CASE HUB—this archived case hub reflects the position at the date of the decision of 7 November 2019; it is no longer maintained. See further,timeline. Case facts Outline of Joined Cases C‑105/18 to C‑113/18, UNESA and Others v Administración General del Estado—several Spanish preliminary references sought guidance, among other matters, on whether Article 107(1) TFEU should be construed as meaning that the imposition of a hydraulic levy, like the measure at issue, to the disadvantage of hydroelectricity producers operating in river basins spanning more than one autonomous community, constitutes prohibited State aid. Latest developments On 7 November 2019, the Court of Justice handed down its judgment......
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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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