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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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What is contaminated land risk assessment? Risk refers to the combined effect of: the probability that harm, or pollution of water, will arise because of pollutants present within, on, or beneath the land; and the extent and seriousness of any such harm or pollution, if it were to happen. Accordingly, risk assessment is the process of anticipating what could occur, judging how severe it might be, and using that insight to guide decisions effectively......
What remediation can be required? The enforcing authority may only undertake, or require an appropriate person to undertake, remediation under Pt IIA of the Environmental Protection Act 1990 ( EPA 1990) where it judges such action to be ‘reasonable’, taking into account overall: the likely financial cost involved, and the seriousness of the harm or the pollution of controlled waters In settling what remediation is to be carried out, the expected standard, and whether the measures are reasonable, the authority must have regard to the statutory guidance at all stages in its decision-making process. Someone may volunteer to implement remediation through a scheme that differs from that which would otherwise be specified in a remediation notice, if they choose. When assessing whether a proposed alternative is suitable, the authority should consider if it would deliver at least the same standard of...
In 2020, the Law Society published a revised practice note on contaminated land. That Law Society note superseded the 2016 iteration of the practice note. Earlier, the version issued on 18 December 2014 had taken the place of the Society’s former green card warning on contaminated land. What does the practice note cover? The note outlines the Law Society’s view of sound practice in relation to contaminated land for solicitors involved in property transactions and related matters. It advises that practitioners should always assess whether contamination arises in every conveyancing matter, and flags that contamination can be a significant concern in certain transactions. For legal purposes, land is only treated as ‘contaminated land’ under Part IIA of the Environmental Protection Act 1990 ( EPA 1990) where it presents an unacceptable level of risk and has been formally determined as such by the local...
What is the duty to inspect? Local authorities ( LAs) are required to examine their localities for the purpose of: identifying any contaminated land under Part IIA of the Environmental Protection Act 1990 ( EPA 1990) deciding whether it should be designated as a special site; for further details see Practice Note: Special sites of contaminated land When determining contaminated land, LAs must comply with the statutory guidance. What land must be inspected? LAs must assess land situated within their own area. An LA has no obligation to inspect land beyond its boundaries......
Children in care Children in care sit within a sub-category of the broader group of ‘looked after’ children. The parallel sub-category consists of children accommodated under most of the other social services functions operated by the local authority. A child is regarded as being in the care of a local authority when subject to a care order, and this extends to a child under an interim care order. In England, there are three sets of children who, although accommodated under social services functions in the Children Act 1989 ( Ch A 1989), are not classed as looked after. These are children accommodated under: the general duty on local authorities to provide services to children in need, their families and others under Ch A 1989, s 17 the duties towards children who have left care, including pathway plans, under Ch A 1989, s 23B the...
ARCHIVED: This Practice Note has been archived and is no longer maintained. FORTHCOMING CHANGE: Sections 224 to 251 of the Digital Markets, Competition and Consumers Act 2024 will, once commenced, revoke the Consumer Protection from Unfair Trading Regulations 2008 and substitute them with broadly comparable primary legislation to enhance consumer law enforcement. The new framework will begin on a date set by regulations made by the Secretary of State. This Practice Note examines consumer protection law and its connection to property, especially conveyancing transactions. It chiefly considers unfair contract terms and unfair commercial practices as treated by the Consumer Rights Act 2015 and the Consumer Protection from Unfair Trading Regulations 2008. Consumer protection legislation The main legislation The principal legislation relating to consumer rights protection in property law is: Consumer Rights Act 2015 ( CRA 2015) Consumer Protection from Unfair Trading...
ARCHIVED: This Practice Note has been archived and is not maintained. It provides a concise overview of the principal legislation relevant to trading with consumers, and consumer contracts formed, before 1 October 2015. From that date, the Consumer Rights Act 2015 revised or superseded much of the material considered here. For the position after 1 October 2015, see Practice Note: Key consumer legislation—summary. The table below outlines the main statutes businesses had to observe when engaging with consumers before 1 October 2015, indicates how those laws evolved over time, and highlights key actions arising from them. Core legislation Legislation: Unfair Contract Terms Act 1977 ( UCTA 1977) Description/key terms: UCTA 1977 identifies categories of liability that businesses cannot exclude against a consumer, and applies a test of reasonableness to other provisions that exclude or cap consumers’ liability or remedies. Action...
This Practice Note outlines when and how lenders may obtain and realise security under sections 105–126 of the Consumer Credit Act 1974 ( CCA 1974), covering the creation of security, typical forms used in consumer credit arrangements, and methods of enforcement. For guidance on routes to enforce judgment debts arising from consumer credit, see Practice Note: Enforcing a consumer credit agreement. General Consumer credit agreements are frequently supported by some form of security, granted by the borrower or by a third party. Such security affords lenders vital protection against the risk that a defaulting borrower cannot meet any judgment obtained against them. It may, however, impose a significant burden on the borrower, for instance where the collateral is a charge over their home. As a result, the obtaining and enforcement of security are tightly regulated by CCA 1974. The principal rules appear in sections 105–126 of CCA...
Practice Note This Practice Note outlines activities undertaken by law firms that edge into consumer credit, drawn from Solicitors Regulation Authority ( SRA) case studies. For each activity, it distils and explains when, per SRA guidance, Financial Conduct Authority ( FCA) authorisation is needed. For a general overview, see Practice Note: Consumer credit and law firms... Debt recovery Work type Marketed as one of the firm’s core services Carried out by unqualified staff under a solicitor’s supervision Scenario A financial institution instructs the firm to recover arrears under a credit card agreement. The remit is to: Take steps to pursue the debt Assess commercial viability if the debtor does not respond Refrain from issuing proceedings or starting litigation SRA guidance FCA authorisation is required for the firm’s debt recovery work because: The advocacy or litigation exclusion is inapplicable (as proceedings are expressly ruled out) The...
Law firms might be caught by the consumer credit regime: by acting as a lender under a consumer credit agreement, for example regarding their fees by undertaking ancillary consumer credit activity, such as debt adjusting In light of the Court of Appeal decision in CFL Finance Ltd v Laser Trust, a creditor that enters into a settlement agreement appended as a schedule to a Tomlin Order may fall within the consumer credit regime where the settlement itself amounts to a consumer credit agreement—see also News Analysis: Does a Tomlin order provide ‘credit’ under the Consumer Credit Act 1974? ( Gertner v CFL Finance). The same risk can arise for a law firm’s own settlement document, for instance when compromising a client debt claim, as it can for other parties. This Practice Note addresses your arrangements for charging clients. You may...
This Practice Note This Practice Note sets out the principal points for solicitors arising from the Consumer Contracts ( Information, Cancellation and Additional Charges) Regulations 2013 ( CCR 2013), SI 2013/3134, insofar as they relate to costs and funding. Its purpose is to draw attention to the main issues for solicitors stemming from these regulations in respect of costs and funding, rather than to offer a wider review of the regulations. It does not attempt a general overview of CCR 2013 beyond these focused points only. It addresses three categories of contract—distance, off-premises and on-premises—and the matters that should be taken into account. Before CCR 2013 took effect, the following regimes applied: Cancellation of Contracts made in a Consumer’s Home or Place of Work etc Regulations 2008 ( Cancellation Regulations 2008), SI 2008/1816, and the Consumer Protections ( Distance Selling) Regulations 2000, SI...
Scope of this Practice Note This Practice Note explains the regulatory framework for consumer buy-to-let ( CBTL) lending under the Mortgage Credit Directive Order 2015, SI 2015/910 ( MCD Order 2015), which implemented the EU Mortgage Credit Directive ( Directive 2014/17/ EU) (the EU MCD) within the UK regime before the UK decided to leave the EU. The MCD Order 2015 was issued on 25 March 2015 and became fully operative on 21 March 2016, the deadline by which all Member States were required to implement the EU MCD. For a flowchart indicating whether CBTL registration obligations apply, see: Registration requirements for CBTL mortgages—flowchart. For an outline of the UK’s implementation of the EU MCD, see Practice Note: Mortgage Credit Directive— UK implementation and the post- Brexit regime. For an overview of the EU MCD framework, see Practice Note: EU Mortgage Credit...
This Practice Note This Practice Note sets out an employer’s duty to consult on health and safety, either directly with the workforce or through health and safety representatives. It addresses union-appointed safety representatives under the Safety Representatives and Safety Committees Regulations 1977, and representatives of workplace safety under the Health and Safety ( Consultation with Employees) Regulations 1996. It explains the representatives’ functions, the breadth of consultation required, and the employer’s responsibilities when consulting, including allowing paid time off, providing information and facilities, and establishing a health and safety committee. It also outlines employment protection for representatives and others in relation to health and safety, including protection from detriment and dismissal, and considers the mechanisms for enforcing the regulations. Topics covered include: an overview of the relevant legislation and guidance (see Relevant legislation and guidance, below) ...
Consultants carrying out the role of certifier Consultants including employers’ agents, contract administrators, project managers and architects are frequently called upon to serve as certifier under a building contract. By way of illustration, across several JCT forms, such as the Standard Building Contract and the Intermediate Building Contract, the architect/contract administrator must make a range of determinations, notably issuing the practical completion certificate and the certificate of making good (see also Practice Note: Administration of construction contracts). Under the JCT Design and Build Contract 2011/2016/2024, this function is undertaken by the employer’s agent. Within the NEC3/ NEC4 suites the project manager fulfils the certifier role, and comparable positions exist in other standard forms (see, for instance, Practice Note: FIDIC contracts 2017—the role of the Engineer). Performing as certifier places the consultant in a decision‑making position and imposes duties to act fairly and with...
This Practice Note directs legal practitioners on the meaning and scope of consultant lobbying, and on compliance, offences, and sanctions arising under Part 1 of the Transparency of Lobbying, Non- Party Campaigning and Trade Union Administration Act 2014 ( TLNPCTUAA 2014) (also called the Lobbying Act). What does the Lobbying Act do? TLNPCTUAA 2014 is arranged into three discrete parts, with certain supplementary provisions, as follows: TLNPCTUAA 2014, Pt 1 creates a register of ‘consultant lobbyists’ (in essence, those presenting representations to government for clients) and appoints a registrar to oversee, monitor, and enforce the registration obligations in practice TLNPCTUAA 2014, Pt 2 revises certain elements of electoral law concerning non-party campaigning (individuals or organisations campaigning before elections who are not themselves candidates or parties). For further guidance and context, see Practice Note: Non-party...
Agreement for lease An agreement for lease is a commitment between a landlord or property owner and a tenant, under which the tenant promises to take a lease of all or part of a property at a future date, once the landlord has met specified obligations set out in the agreement. In legal terms, an agreement for lease is a contract for the sale or other disposition of an interest in land, and it will be ineffective unless it complies with section 2 of the Law of Property ( Miscellaneous Provisions) Act 1989 ( LP( MP) A 1989). It must: be in writing set out or incorporate all the terms expressly agreed between the parties, and be signed by, or on behalf of, the parties Such an agreement is required where the landlord and tenant cannot enter into the lease...
This Practice Note outlines who bears duties and the nature of those duties under the Construction ( Design and Management) Regulations, and also addresses head protection. The regulations apply to all those carrying out construction works, except domestic individuals who are not undertaking such works as part of a business. Note: for access to revoked regulations mentioned in this Practice Note, subscribers to Lexis+ UK Legal Research may request historical versions here. Post 1 October 2013 On 1 October 2013, section 69 of the Enterprise and Regulatory Reform Act 2013 took effect. For workplace accidents occurring from that date, no civil liability flows from a breach of health and safety statutory duty unless the specific regulation so provides. Practitioners must therefore establish negligence at common law. Although claims can no longer be founded solely on breach of regulation, claimant...
When funding any development or construction scheme, the lender (or funder) and its advisers will adopt a range of measures to safeguard the lender’s position. These protections are designed to ensure that, at the very least, the lender can recover the monies advanced if the borrower (or developer) becomes insolvent or the project encounters difficulties. A principal document in any development financing is the contract between the lender and the borrower (the ‘facility agreement’), which sets out detailed provisions specific to the development. For guidance on the key construction matters that should be addressed in facility agreements, see Practice Note: Facility agreements—construction provisions. Another significant element of a development financing is the lender’s lawyers reviewing the construction documentation prepared by the borrower and its lawyers to confirm that it is correctly drafted and affords suitable rights to the borrower and any relevant third...
What is a facility agreement? Many construction projects, especially larger developments, often need external finance from banks or other lenders to support them during the build phase. The borrower will usually enter a facility agreement with the lender (or a group of lenders), which sets out the terms and conditions of the deal. It records the financing arrangements reached between the parties. It covers obligations, core pricing and timing requirements mutually agreed between them. Typical structure The precise make-up of a facility agreement varies according to factors such as the form of facility provided and the proposed application of the funds. Nonetheless, its core purpose is to see the lender’s capital repaid on time and to secure the return the lender expects on the loan at the agreed point. Consequently, most facility agreements contain broadly comparable provisions, commonly set out in a similar...
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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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