Legal Practice Notes

A recognised investment exchange ( RIE) is a UK recognised body designated under Part XVIII of the Financial Services and Markets Act 2000 ( FSMA 2000), having received a recognition order from the Financial Conduct Authority ( FCA). For the general prohibition in FSMA 2000, s 19, an RIE qualifies as an exempt person, so it requires no permission from the FCA or the PRA ( Prudential Regulation Authority) under FSMA 2000, Pt 4A to undertake regulated activities as part of its business as an investment exchange, or for, or in relation to, the provision of clearing services in the UK. You can find examples of RIEs on the Financial Services Register, such as: London Stock Exchange London Metal Exchange Limited ICE Futures Europe FCA Handbook requirements Rules for RIEs sit in the Recognised Investment Exchanges ( REC) specialist...

Real estate finance is a type of secured lending. Some motivations for taking security in a real estate finance deal mirror in practice the general benefits of security seen in commercial lending (see Practice Note: Difference between security and quasi-security— Why take security and/or quasi-security?). However, security assumes heightened significance here because the borrower is commonly a special purpose vehicle ( SPV) (also referred to as a special purpose company or SPC) incorporated solely for the contemplated transaction (that is, to acquire, or to acquire and develop, a property). Consequently, the borrower will lack an operational track record and its assets will be limited to the property itself and, where relevant, the development of that property. See Practice Note: Introduction to real estate finance—the lending structure— Borrower entities in real estate finance transactions. Due to the SPV structure, a lender’s assessment of the...

Safeguards are in place to prevent, in broad terms, the movement of assets between connected parties in a manner that speeds up capital allowances via the annual investment allowance or first-year allowances, or that deliberately contrives to overstate the figure on which relief is available by any artificial means whatsoever. This Practice Note explains how the capital allowances regime defines connected persons and also sets out how those provisions operate when assets pass between such persons. For further guidance and detail on an election permitting alternative treatment where a trade is transferred between connected persons, see Practice Note: Capital allowances and company reconstructions— Transfer of a trade between connected persons in practice. For an overview of the computation of capital allowances for plant and machinery, including, in particular, the meanings of annual investment allowance, first-year allowances, disposal value and writing down allowance, refer to Practice Notes: How plant and...

This Practice Note outlines how the bank levy currently operates and the re-scoping introduced in 2021. It has been prepared in collaboration with Charlotte Sallabank and Larry Wong of Katten Muchin Rosenman. The bank levy is a tax that: applies to periods of account—termed chargeable periods in the legislation—that end on or after 1 January 2011; and is levied on specified categories of equity and liabilities—referred to as chargeable equity and liabilities—measured at the end of a chargeable period for banks, building societies, and groups that include them It is a balance sheet tax rather than a tax on bank profits, and the first £20bn of chargeable equity and liabilities falls outside the scope of the bank levy. Structure of this Practice Note The bank levy rules depend on a wide range of detailed definitions. To assist readers, selected key terms are listed at the end of...

Practice Note This Practice Note explores the principles of costs recovery for money claims under Section II of CPR 45 when seeking costs after a summary judgment application. It addresses the claimant’s position, including whether the fixed costs regime in CPR 45 applies, if it can be disapplied, and the consequences where the claimant withdraws a summary judgment application. It also considers the defendant’s position when it successfully opposes summary judgment, offering guidance on the prospect of indemnity costs and the implications for costs budgeting. Note that this Practice Note relates to money claims under Section II of CPR 45. The current CPR 45.16(2) was previously rule 45.1(2)—both the present and former rules provide that fixed costs apply where the only claim is for a ‘specified sum of money’ and ‘summary judgment is given under Part 24’. For fixed costs money claims issued before 1...

What is statutory blight? Statutory blight arises where the worth of a property is diminished due to proposed development or public works, leaving owners unable to achieve full market value because the property is expected to be required for, or affected by, public purposes, meaning a sale may have to proceed at a significantly reduced price. Under the Town and Country Planning Act 1990 ( TCPA 1990), an individual with a ‘qualifying interest’ who has taken reasonable endeavours to sell may be entitled to serve a ‘blight notice’ on the authority responsible for the scheme, compelling them to purchase the property at market value. When does statutory blight apply? The reach of the statutory blight regime—both the land that can be treated as blighted and the point at which blight arises—is prescribed by TCPA 1990, Schedule 13. Schedule 13 lists several triggers for statutory blight,...

The Standard Conditions of Sale ( Fifth Edition—2018 Revision) ( SCS) comprise the typical terms underpinning most agreements for buying and selling residential property in England and Wales. For more detail on the SCS, refer to Practice Note: Standard Conditions of Sale ( Fifth Edition—2018 Revision)—a guide to the principal provisions. This Practice Note explains how the SCS deal with payment of completion monies and the issues that commonly arise. It sets out the SCS approach to completion funds and flags recurring practical points. It also addresses matters to bear in mind where a mortgage needs to be discharged. How much is payable?......

Arbitration and dispute resolution in sport are frequently dictated by the bespoke rules of the pertinent federation or association. Accordingly, this Practice Note begins with a summary of how sports regulation and governance are structured, before moving to a high-level outline of sports arbitration procedures. Structural organisation of sport regulation and governance Sport is commonly overseen and regulated by associations and federations. Every such body maintains governance frameworks and detailed rules by which they are organised, and these will very often set out provisions and mechanisms for the resolution of disputes that arise within the sport. Some disciplines fall within the Olympic Games and the wider Olympic Movement. The Olympic Movement denotes ‘all organisations, athletes and other persons who agree to be guided by the Olympic Charter’ ( Olympic Charter, 2015, Rule 1.1). The International Olympic Committee ( IOC) supervises the Olympic Movement and, in...

This Practice Note outlines how to obtain an order for assessment and the steps to follow if one is made, including the necessary documents and evidence, the assessment hearing, and who bears the assessment costs. The provisions governing the assessment of solicitors’ costs are in CPR 46 and CPR PD 46 at para 6.1 onwards. Throughout, the Solicitors Act 1974 is abbreviated to SA 1974. For further information on: a client’s entitlement to seek an assessment—see Practice Note: Solicitor and client costs—rights to an assessment the High Court’s power to require a solicitor to deliver a bill of costs ( SA 1974, s 68)—see Practice Note: Solicitor and client costs—applications for delivery the features required of a statute bill—see Practice Note: Solicitor and client costs—statute bills the basis applied on a solicitor–client assessment—see Practice Note: Solicitor and client costs—basis of...

ARCHIVED: This Practice Note is archived and no longer updated. It is supplied for background purposes only. On 22 August 2023, SIAC opened a public consultation on the Draft 7 th Edition of the SIAC Rules. The draft SIAC Rules, 7 th Edition, can be accessed here. This Practice Note reviews key provisions of the Arbitration Rules of the Singapore International Arbitration Centre ( SIAC) (6th edition) 2016 (2016 SIAC Rules) relating to the presentation of evidence. The 2016 SIAC Rules apply to arbitrations begun on or after 1 August 2016, unless the parties have agreed otherwise. Evidence and conduct of proceedings In proceedings under the 2016 SIAC Rules, the tribunal may manage the arbitration in any manner it deems suitable, after consulting the parties, so as to secure a fair, speedy, economical and final resolution of the dispute (2016 SIAC Rules, r 19.1). The...

Secure tenancy This Practice Note outlines the tests in section 79 of the Housing Act 1985 ( HA 1985) that must be satisfied for a tenancy to be secure, and then examines each test in detail. It considers whether the accommodation constitutes a dwelling, whether the dwelling is the tenant’s principal home, the landlord requirement, the tenant requirement, and the Schedule 1 HA 1985 exceptions where a tenancy or a licence cannot be secure. It also explains how a secure tenancy can be varied and highlights the additional rights available to secure tenants. Secure tenancies are the tenancy form most commonly provided by local authorities ( LAs). The definition of a secure tenancy, and the rights afforded to secure tenants, are derived from Part 4 of the Housing Act 1985 ( HA 1985)......

Why are the SDLT anti-avoidance provisions important? The stamp duty land tax ( SDLT) anti-avoidance regime contained in section 75A of the Finance Act 2003 ( FA 2003) first appeared in the Pre- Budget Report 2006 and was later put on a statutory footing as primary legislation by the Finance Act 2007 in an expanded form, being FA 2003, ss 75A–75C (referred to collectively in this Practice Note as 's 75A'). The measures were brought in to deter the apparently substantial volume of SDLT planning arrangements deployed across both commercial and residential land transactions in the United Kingdom. They have effect for disposals occurring on or after 6 December 2006, subject to transitional provisions. Instead of closing SDLT planning arrangements one structure at a time through amendments to particular parts of the SDLT code, the chosen policy was to adopt a 'mini general...

Unjust enrichment and restitution—overview As outlined in Unjust enrichment and restitution—overview, restitution seeks to reverse an unfair or unjust benefit obtained by one party at another’s expense. Practice Note: Unjust enrichment—elements of the claim identifies the core requirements for pursuing an unjust enrichment claim and explains how those elements interact in practice. A defendant’s wrongdoing is not a prerequisite; the question is whether it would be unjust for the defendant to keep a gain secured at the claimant’s expense. For example, the claimant might have paid the defendant by mistake, even though the defendant did nothing wrongful. Practice Note: Unjust enrichment—defences sets out available defences, including that the defendant has changed their position in consequence of the enrichment, or that the defendant is a bona fide purchaser for good value, having provided proper consideration for what was received, even where this came at the...

Where a solicitor is engaged to prepare and negotiate an agreement that provides for overage, the retainer carries, expressly or by necessary implication, a duty to build in mechanisms safeguarding the seller’s right to those sums, which may not crystallise for several years. A buyer’s positive covenant to pay overage will not of itself bind successors in title, because the burden of a positive covenant does not run at law or in equity. Relying solely on a contractual promise will not secure recovery against successors in title. If adequate protection is not put in place, the practitioner risks a negligence claim, with damages assessed on a loss‑of‑opportunity basis. Protection by legal charge One recognised – and relatively common – method is to secure the overage by a legal charge over the land being disposed of and subject to the overage. The charge secures any overage...

Proprietary claims Creditors frequently seek to secure proprietary claims, as these confer rights in rem (attaching to the asset itself) rather than personal rights (which bind only the individual). This distinction is especially significant when a company becomes insolvent: assets caught by a proprietary claim are excluded from the distressed company’s estate, allowing the claimant to recover in full, instead of proving as an unsecured creditor in the liquidation/administration and waiting for a dividend (which typically takes many months and is often under 50% — and occasionally almost nothing). In practice, proprietary claims jump ahead of secured and preferential creditors in the priority waterfall because the assets are ring-fenced for the benefit of the proprietary claimant. For payment waterfalls, see Practice Note: Waterfall of payments—a comparative guide......

The templates in this document are drawn from the material in Part 2, Chapter 15 of Cretney and Lush on Lasting and Enduring Powers of Attorney. This paper provides model wording suitable for use in property and financial affairs lasting powers of attorney ( LPAs). For alternative wording relevant to health and welfare LPAs, see: LPA precedent instructions and preferences—health and welfare LPAs. For wording that can be included in either property and affairs or health and welfare LPAs, see: LPA precedent instructions and preferences—property and financial affairs and health and welfare LPAs. For guidance on instructions and preferences, see Practice Note: LPAs—instructions and preferences. Triggering event—evidence of mental incapacity ' My attorneys may exercise this authority only after they have obtained a written medical opinion confirming that I am no longer mentally able to manage and administer my property and financial...

Civil justice reform See our Practice Note: Civil justice reform in Scotland—virtual hearings and electronic submission of documents for up-to-date guidance on the position in the Scottish civil courts regarding remote hearings and the electronic signing, sending and lodging of documents. This Practice Note outlines the practical considerations when preparing for a proof or a proof before answer in Scottish civil proceedings. As procedures differ, they carry distinct procedural obligations and deadlines. Consult the specific rules to ensure all procedural requirements are fulfilled. For guidance on Specific procedures: Scottish DR: courts and civil procedure—overview Other aspects of commencing and advancing a civil claim in Scotland: Scottish DR: prescription and limitation—overview; Scottish DR: starting a claim—overview; and Scottish DR: case management and evidence—overview, each linking to more detailed guidance The equivalent in England and Wales: Trial—overview, which links to detailed guidance on preparing for...

The voting requirement As set out in Practice Note: Schemes of arrangement—process and statutory framework, section 899(1) of the Companies Act 2006 provides that the court may sanction a scheme only where, at each scheme meeting, approval is obtained by: a majority in number (the numerosity test); and creditors representing 75% in value voting in person or by proxy. From 26 June 2020, if a scheme is proposed within 12 weeks of a moratorium under the Corporate Insolvency and Governance Act 2020, those owed moratorium debts and any pre‑moratorium debts for which the company did not benefit from a payment holiday during the moratorium effectively possess a veto, as the court may not sanction a scheme that makes provision in respect of such creditors without their consent (see Practice Note: Moratorium). For guidance on the methodology used to determine the correct...

Overage Overage (also called ‘clawback’ or ‘deferred consideration’) allows a seller to share in any later increase in the land’s value—for example once planning permission is secured or when completed units are sold—after the initial disposal. The right to overage is purely contractual, and any clause will be read narrowly against the party relying on it, so precision is vital. First, decide if overage is the right tool: your client might be better off with a conditional sale contract rather than an outright sale with an overage mechanism. Keep proportion when bargaining; overage can prolong talks and inflate costs, and you may need to manage your client’s expectations on timetable and fees. Sellers, particularly in the public sector, commonly require overage to avoid later embarrassment if the buyer develops and/or disposes of the land at a significant profit. However, from the seller’s angle, overage...

Note—to check whether notification thresholds in Oman and across the world are met, please see: Where to Notify. 1. Have there been any recent developments regarding the Omani merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Oman? Competition, anti-monopoly and merger control in Oman are governed by Royal Decree No. 67 of 2014 promulgating the Competition, Protection and Monopoly Prevention Law (as amended), together with its Executive Regulation issued by Ministerial Decision No. 18 of 2021 (collectively, the Competition Laws). Article 3 provides that the law applies to all economic or commercial activities practised in Oman, as well as any such activities undertaken outside Oman that have ‘consequences prevailing in Oman’. The Competition Protection and Monopoly Prevention Centre (now integrated into the Ministry of Commerce, Industry and Investment Promotion in Oman) (the CPMPC) is the...