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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 summarises the rules governing costs in financial remedy proceedings arising from divorce or civil partnership cases under the Family Procedure Rules 2010 ( FPR 2010), and in financial proceedings that proceed under the Civil Procedure Rules 1998 ( CPR), setting out how the relevant provisions apply in practice. General provisions The court retains an ongoing discretion to make such costs orders as it considers just at any time. By FPR 2010, SI 2010/2955, 28.2(1), CPR 44 (excluding CPR 44.2(2)–44.2(3) and CPR 44.10(2)–44.10(3)), together with CPR 45.8, 46 and 47, and the associated practice directions, apply to costs in family proceedings, albeit with certain modifications......
This Practice Note explains when courts may depart from the default position that the winning party recoups costs from the losing party. It gives illustrations of departures from the default and instances where the default has not been applied. It also highlights circumstances where that general position was considered inapplicable. For details on the default rule and the court's discretion, see Practice Notes: Costs orders—the general rule and Costs orders—the court's discretion. Departing from the general rule It was affirmed in Straker v Tudor Rose (2007) that the court should start with the default rule unless particular factors warrant a different outcome. A non-exhaustive set of potential factors was identified: failure to comply with a pre-action protocol whether a party has unreasonably advanced or opposed an allegation or issue the way in which an allegation or issue has been pursued whether the...
ARCHIVED: As at 1 December 2013, this Practice Note was archived and is retained solely for historical reference. It is helpful for readers seeking to understand the costs budgeting pilot schemes that operated before 1 April 2013. Purpose of the costs budgeting pilot schemes Two pilot initiatives were undertaken to test how costs budgeting functioned in real cases. Mercantile court pilot—this took place across all Mercantile and TCC courts as a voluntary programme. Monitoring was undertaken through questionnaires and telephone calls to assess its success in controlling expenditure and keeping clients apprised of the overall costs position. An interim review of its operation was issued in February 2012, albeit only a relatively small number of responses were received. A further report was produced by Fenwick Elliot in October 2012. Defamation pilot—this operated in the RCJ and the Birmingham District Registry and covered claims in...
ARCHIVED: This Practice Note is kept for historical reference only. CPR provisions As a consequence of the Jackson Reforms, the courts are required to conduct both case management and costs management. Costs control is implemented through costs budgeting, which is intended to secure proactive and proportionate management of proceedings. The requirements for costs budgeting are contained in section II of CPR 3 and in CPR PD 3E. As this replaced the earlier rules on costs estimates, we have dealt with it in the same location and retitled the subject: Costs estimates and budgeting. Note: the provisions on costs budgeting originally set out in SI 2013/262 were altered very quickly by SI 2013/515 so that: the Heads of the Chancery and Queen's Bench Divisions may determine classes of cases within their divisions to which costs budgeting will not apply......
ARCHIVED: This Practice Note is archived and is not being maintained This annual round-up highlights major developments from 2017, including: The Ministry of Justice’s announcement that it would scrutinise the success of the Legal Aid Sentencing and Punishment of Offenders Act 2012 ( LASPO 2012). Supreme Court and Court of Appeal judgments concerning funding under LASPO 2012’s transitional provisions. A report on prospective fixed costs reforms published on 31 July 2017. Amendments to CPR 3.18 addressing the relationship between costs budgeting and detailed assessment. The round-up also signals what is expected in 2018 across costs and funding, notably consultations following Lord Justice Jackson’s 2017 fixed recoverable costs ( FRC) report and the implementation of a new electronic bill of costs. Reviewing 2017 The Ministry of Justice confirmed it would assess the effectiveness of LASPO 2012, which introduced the Jackson costs reforms; a series of...
This Practice Note explores the cost implications associated with group litigation claims. Such claims involve numerous parties and might proceed with or without a group litigation order ( GLO). Where a GLO is granted, distinct CPR rules govern. In the absence of such an order, authorities provide guidance on the courts’ approach to costs. This Practice Note considers both situations... GLOs—what are they? GLO proceedings bring together a cohort of parties within one action, with their claims entered on a group register. Any party whose claim appears on the register is a group litigant ( CPR 46.6(2)), whether they are a claimant or a defendant. The objective of a GLO is to determine issues common to many claims through a single set of proceedings in a cost effective manner. For wider guidance on GLOs, see Practice Notes: Group litigation...
This Practice Note expands on the core principles of cosmetic surgery claims, with particular attention to claims arising from breast enlargement, reduction or augmentation. As with other cosmetic surgery matters, the surge in social media use has contributed to a higher volume of such procedures. See Practice Note: Cosmetic surgery claims. Definitions Breast enlargement is an operation to increase breast size by placing implants. These are breast-shaped sacs featuring a silicone outer shell, filled with either silicone gel or saline solution. Breast augmentation is surgery aimed at improving breast shape where there is asymmetry or a marked size difference. Misshaping may result from breast trauma, a mastectomy, or a congenital deformity. Breast reduction is a procedure to decrease breast size. It is commonly performed for women with very large breasts that cause neck and back pain, or...
Synopsis: The World Economic Forum estimates corruption costs at least US$2.6tn, equalling no less than 5% of global GDP. Some jurisdictions forfeit as much as 17% of their GDP to corruption ( Valle, Martim Della & Schilling de Carvalho, Pedro, ‘ Corruption Allegations in Arbitration: Burden and Standard of Proof, Red Flags, and a Proposal for Systematization’, Journal of International Arbitration 39, no 6 (2022)). Losses linked to trade-based money laundering in developing nations reached US$9tn between 2008 and 2017. Yet corruption’s effects go far beyond economics. It penetrates society, curbing growth and development, while weakening consent, democracy, and the rule of law. Arbitrators play a vital part in confronting corruption and money laundering in international arbitration. This Practice Note is intended to help identify and understand how best to address corruption and money laundering questions in arbitrations. Its...
This Practice Note explores the tax position of investors in open‑ended investment companies ( OEICs) and authorised unit trusts ( AUTs) who fall within the scope of UK corporation tax—namely UK‑resident companies and non‑ UK resident companies trading through a UK permanent establishment. These investors are described here as ‘corporate investors’. Note that bespoke provisions, not addressed in this Practice Note, may apply where the investor is an insurance company or a financial trader. In statute, OEICs and AUTs are jointly defined as authorised investment funds ( AIFs). The main provisions that determine how AIFs and their investors are taxed appear in the Authorised Investment Funds ( Tax) Regulations 2006 ( SI 2006/964) (the AIF Tax Regulations). For: what OEICs and AUTs are and an outline of the relevant regulatory framework, see Practice Note: Tax and authorised investment funds—what are they?......
This Practice Note explores tortious liability in the corporate sphere, covering the general approach to corporate liability in tort, the wrongful acts of company agents, and matters relating to group structures, including when a parent may owe a duty of care for the negligent acts or omissions of its subsidiary company or companies. It considers key Court of Appeal and Supreme Court rulings— Chandler v Cape, AAA v Unilever, Vedanta v Lungowe and Okpabi v Royal Dutch Shell—and flags particular issues for companies facing accessory liability in tort (common design). For wider guidance on types of tort claims and on establishing a duty of care in negligence, see Practice Notes: Vicarious liability and multi-party torts Procedural abuse torts and similar The different torts—property, people and animals Multiple...
Self-reporting describes when a business discloses financial or other misconduct to regulators and/or law enforcement agencies, either because legislation or rules compel it (mandatory) or, where no express duty exists, because doing so is considered prudent to seek leniency and/or avoid prosecution (voluntary). In the UK, mandatory self-reporting is required for: health and safety at work environmental financial and trade sanctions anti-money laundering ( AML) and counter-terrorist financing ( CTF) financial regulation by the Financial Conduct Authority ( FCA) and Prudential Regulation Authority ( PRA) Voluntary self-reporting primarily arises in relation to: anti-bribery and corruption ( ABC) ‘failure to prevent’ ( Ft P) offences Mandatory self-reporting Several regulatory frameworks impose express, or effectively impose, obligations to self-report. Some of the regimes on which corporate crime lawyers frequently advise are noted below. Health and safety at work and environmental A compulsory framework operates under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 ( RIDDOR), SI...
This Practice Note outlines the operation of Scotland’s self-reporting framework for specified economic crime offences. For information on the Scottish law enforcement bodies and prosecutors dealing with economic and financial crime, see Practice Note: The investigation and prosecution of financial crime in Scotland. For guidance on sentencing in Scotland, see Practice Notes: The jurisdiction and sentencing powers of Scottish criminal courts and Sentencing corporate criminal offences in Scotland. Self-reporting bribery in Scotland From 1 July 2011, the Crown Office and Procurator Fiscal Service ( COPFS) has allowed companies to disclose bribery offences to COPFS with a view to discussing a civil settlement as an alternative to prosecution. For the territorial scope of prosecutions under BA 2010, see Practice Note: Bribery Act 2010—jurisdictional issues between Scotland and the rest of the UK. COPFS generally publishes details of concluded civil settlements. Media statements...
Although suppliers are usually unsecured creditors (unless a valid retention of title ( ROT) claim is established), they can be central to achieving a turnaround or a pre-pack sale. Equally, winning customer support is often a crucial ingredient of a workable turnaround business plan. This Practice Note sets out how a company facing financial difficulty should engage with different types of suppliers and customers, as well as how to respond to ROT claims advanced by suppliers... Suppliers The initial due diligence carried out on the company should identify those suppliers that are critical to ongoing trading—namely, sole providers of essential goods or services, or situations where moving to alternatives would entail lengthy lead times (for example, credit card machines, IT systems, or computer and accounting software often embedded within the business). The company ought to prioritise outreach to these suppliers through a...
STOP PRESS: On 26 October 2023, the Economic Crime and Corporate Transparency Act 2023 ( ECCTA 2023) obtained Royal Assent. Its purpose is to bolster corporate openness in the UK, primarily through Companies House reforms and amendments to provisions within the Companies Act 2006. It further aims to modernise the regulatory framework for limited partnerships and confer stronger powers to combat economic crime. Implementation of ECCTA 2023 will be phased, with commencement dates staggered. Several measures commenced on 4 March 2024 and could affect this content. For more detail, refer to Practice Notes: Implementation of the Economic Crime and Corporate Transparency Act 2023 and The Economic Crime and Corporate Transparency Act 2023—tracker, especially the legislation and consultation tracker. This Practice Note summarises the Companies Act 2006 ( CA 2006) provisions concerning a company’s annual accounts and associated reports. The CA 2006 contains detailed rules and...
The key corporate documents for a corporate real estate ( CRE) joint venture to develop a property are: the joint venture agreement ( JVA), and the articles of association of the joint venture company ( JVC) Further documents that will be needed include: the property sale agreement, see for eg Precedents: Contract for sale—freehold vacant possession conditional on planning and Contract for sale—leasehold vacant possession conditional on landlord’s consent the development funding agreement, see Practice Note: Real estate finance—development facilities—key features development management agreement, see Precedent: Development management agreement Brexit impact For guidance on how Brexit could affect CRE corporate joint ventures, and what this might mean for the drafting, negotiation and enforceability of CRE JVAs, see Practice Notes: Brexit—impact on corporate joint ventures and Brexit—drafting boilerplate clauses [...
What is a Corporate PPA? A corporate power purchase agreement ( PPA) is a contract through which a corporate entity buys electricity—most often renewable power—from an electricity generator for consumption in its own business. For the purposes of this Practice Note, we assume the corporate buyer is not located on the same site as the generator. For arrangements involving co-located buyers supplied via private wire, see: Precedents: Power purchase agreement ( PPA)—exempt power supply and Connection agreement for private wires. Corporate PPAs generally follow two principal structures, outlined below. Both are more intricate than the 'classic' PPA, which is a single agreement under which a generator sells all output from its generating station, plus associated benefits, to a licensed electricity supplier (see Practice Note: Power purchase agreements ( PPAs)—key terms and issues). The extra complexity stems from the need to bring a licensed...
The Corporate Manslaughter and Corporate Homicide Act 2007 ( CMCHA 2007) CMCHA 2007 applies throughout the United Kingdom and establishes the offence of corporate manslaughter (referred to in Scotland as corporate homicide). This Practice Note addresses corporate manslaughter rather than corporate homicide, because certain provisions of CMCHA 2007 draw slight distinctions between the two offences. For a primer on the offence, see Practice Note: Corporate manslaughter—an introductory guide. Where the interests of justice so require, a prosecution may advance a charge of corporate manslaughter arising from a particular set of facts alongside, based on some or all of the same facts, an offence under any health and safety legislation. Equally, an organisation already convicted of corporate manslaughter in relation to specified circumstances may, if justice demands, face an additional charge under relevant health and safety legislation grounded on some or all of those...
The Sentencing Council ( SC) has issued an offence‑specific sentencing guideline for corporate manslaughter which, under section 59 of the Sentencing Act 2020 ( SA 2020), also called the Sentencing Code, courts are required to apply in practice when sentencing corporate defendants for corporate manslaughter, unless doing so would be against the interests of justice to do so. This guideline does not extend to Scotland or Northern Ireland, although courts sentencing in those jurisdictions may refer to it to assist their sentencing function as appropriate and when necessary. See Practice Note: Sentencing health and safety cases in Scotland. The SC also publishes a number of overarching guidelines, which ought to be considered and applied in all sentencing exercises undertaken by the courts; see Practice Note: Sentences imposed following conviction. Among these, the General...
The Corporate Manslaughter and Corporate Homicide Act 2007 ( CMCHA 2007) applies throughout the UK and, on 6 April 2008, brought in the offence of corporate manslaughter (referred to in Scotland as corporate homicide). This Practice Note focuses on corporate manslaughter rather than corporate homicide, as certain provisions of CMCHA 2007 treat the two offences differently. For a general overview, see Practice Note: Corporate manslaughter—an introductory guide, and for detailed analysis of the constituent elements, see Practice Note: Corporate manslaughter—the offence. Corporate manslaughter investigations Since its commencement, the offence has been deployed relatively infrequently; projections of 10–12 prosecutions each year have not been realised, though the number of matters progressing through the courts is rising. For data on convictions, see Practice Note: Corporate manslaughter—prosecutions tracker. The precise reasons for the limited volume of prosecutions are unclear, but are thought to stem from a mix of...
ARCHIVED: This Practice Note is archived and no longer maintained This case tracker sets out the current position and latest developments in key matters relevant to corporate practitioners where judgment was delivered, or is expected to be delivered, in 2023. It covers significant cases before the High Court, Court of Appeal and the Supreme Court. It is not intended to be a complete list of cases heard in 2023. This tracker is divided into two parts: Ongoing cases, i.e. those that remain subject to appeal Recent cases, arranged with the most recent first For the purposes of this tracker, CA 2006 refers to the Companies Act 2006 and FSMA 2000 refers to the Financial Services and Markets Act 2000. Ongoing cases Case Citation Next court Subject Status and background Further information Vald. Nielsen Holding A/ S v Baldorino [2019] EWHC 1926 ( Comm) Next court: Court of...
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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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