Legal Practice Notes

The principal limitation periods The following table sets out the main categories of action and specifies how many years a claimant has to issue proceedings under the Limitation Act 1980 ( LA 1980), highlighting, where relevant, the applicable statutory provisions and authorities as appropriate. For help on identifying the applicable limitation period (ie the point at which time begins to run and when it ceases), refer to Practice Note: Limitation Act 1980—general application. Please note the table below is not comprehensive; it does not list every possible claim. It concentrates on those actions most likely to matter to a dispute resolution practitioner and omits certain highly specific causes of action, for instance, successive conversions of goods ( LA 1980, s 3), although these are contained within the LA 1980......

This Practice Note explains who qualifies for public funding in care proceedings, what that funding covers, including expert witness fees and translation charges, and what items require prior authority before they are covered. It also outlines how to seek prior authority and offers guidance on what requests are likely to be approved. Public funding for parties is administered by the Legal Aid Agency ( LAA), an executive agency of the Ministry of Justice. Public funding means the relevant party’s solicitor applies to the LAA for a legal aid certificate and, if issued, may carry out work for the publicly funded client, with the solicitor’s costs and disbursements repaid by the LAA at the end of the case. Who is eligible for public funding in care...

This Practice Note explores the different categories of lease covenants that either bar alterations outright or make them conditional upon the landlord’s consent. It also considers when withholding consent could be reasonable, the granting of consent on conditions, and practical points to bear in mind. Without explicit or implicit permission, a tenant is not allowed to carry out alterations beyond the demised premises; any such access or works will amount to trespass—see Practice Note: Alterations outside the demise. The guidance that follows applies only to works within the demised premises. For help on negotiating an alterations clause in a commercial lease, see Practice Note: Negotiation guide—alterations clause—commercial leases. For guidance on granting a licence for alterations, see Practice Note: A practical guide to dealing with licences for alterations. See also: Licence for...

Applications in the King’s Bench Division If your case is before the King’s Bench Division ( KBD), the provisions of the King’s Bench Guide apply to any application you pursue. This Practice Note gives guidance on applications in the KBD, cross‑referring to the relevant sections of the King’s Bench Guide. Its focus is preparation for an application hearing in the KBD, particularly the documents that must be ready in advance, and the method and timing for lodging them with the court. For guidance on other aspects of the KBD applications process, see these Practice Notes: Making an application in the King’s Bench Division ( KBD) Determination of applications in the King’s Bench Division ( KBD) The following general points should be noted: The King’s Bench Guide provides practical detail on KBD procedure but does not replace the CPR and must be read in...

What does this Practice Note cover? This Practice Note offers guidance on the process for serving a notice under sections 5 or 6 of the ISDA Master Agreement to terminate a derivative transaction. It also sets out what should be included in: a Potential Event of Default notice an Event of Default notice a Termination Event notice a calculation statement How to terminate a derivative transaction? Section 6 ( Early Termination) of the ISDA Master Agreement specifies the consequences that follow the occurrence of an Event of Default or a Termination Event, as described in Section 5 ( Events of Default and Termination Event) of the ISDA Master Agreement. In brief, the distinction is that an Event of Default generally involves culpability by a party, whereas a Termination Event typically arises without fault or from circumstances outside a party’s control. Section 6 also...

Section 1(1)(e) of the Inheritance ( Provision for Family and Dependants) Act 1975 Section 1(1)(e) of the I( PFD) A 1975 functions as the broad fallback where the other gateways do not accommodate a prospective applicant. Yet a claim on this basis is restricted by the obligation to show that, immediately prior to death, the deceased was maintaining the applicant, in whole or in part. Recognising how testing this can be, from 1 October 2014 the Inheritance and Trustee's Powers Act 2014 refined the evidential threshold. An individual is treated as maintained only where the deceased made a substantial contribution, in money or money’s worth, towards that person’s reasonable needs, excluding any contribution provided for full valuable consideration under a commercial arrangement. The expression being maintained appears only in I( PFD) A 1975, s 1(3). Some further assistance is found in I( PFD) A 1975, s 3(4), which the...

Penalties on late paid inheritance tax ( IHT) Although interest frequently accrues on unpaid tax, missing the payment date for certain taxes can also lead to a penalty. For details about interest that accrues on overdue liabilities, see Practice Notes: IHT—payment deadlines on death— Interest on IHT and Interest on late paid tax. A range of late payment penalty regimes operates across different taxes. This Practice Note looks at penalties for late paid inheritance tax, and records that there is presently no dedicated IHT penalty regime in force. Finance Act 2009 ( FA 2009) brought in a late payment penalty framework intended to harmonise the rules across the taxes. Its implementation is staged and, while it already applies to many taxes, it does not yet extend to overdue IHT. It should also be noted that, for income tax...

Including hotchpot provisions in Wills can help balance what beneficiaries receive, equalising benefits between beneficiaries. The hotchpot rule also applies on a partial intestacy where death occurred before 1 January 1996; see Partial intestacy below. The use and purpose of a hotchpot clause The testator should be advised about the potential use of a hotchpot clause in three particular situations, namely: where trust beneficiaries might obtain benefits via a power of appointment over the fund where advances have been, or are expected to be, made to beneficiaries during the testator’s lifetime by the testator where the testator forgives debts owed to them For the first situation, the Will may include a hotchpot provision requiring any class member receiving an appointment to bring that benefit into account, so that they credit that share before they can participate in any unappointed part of the...

A landlord’s right to forfeit a long residential lease A landlord’s power to forfeit a long residential lease for arrears of rent, service charges or administrative charges, and for other breaches of covenant or condition, is constrained by statute, namely sections 166–169 of the Commonhold and Leasehold Reform Act 2002 and section 81 of the Housing Act 1996. This Practice Note explains when a landlord may forfeit a long residential lease, and the steps required beforehand, which can include seeking a determination from the First-tier Tribunal ( Property Chamber) (or a court or other tribunal, as appropriate) of the sum due or the existence of the breach, together with the possible legal consequences of wrongful forfeiture of a residential lease. Statutory provisions restrict a landlord’s ability to serve a s 146 notice or forfeit a long residential lease for: ...

Advantages and disadvantages of taking a floating as opposed to a fixed charge This Practice Note examines the advantages and disadvantages of taking a floating, rather than a fixed, charge, mainly from the chargee’s perspective, and why understanding the trade-offs is important. In secured lending, it is common for lenders to place fixed charges over non-variable assets of a company and a floating charge across the balance. This blended approach enables a lender to maximise the key benefits offered by each form of security while achieving coverage across the asset base. Fixed charges, where they can be obtained, usually produce better recoveries on enforcement. By contrast, holding a qualifying floating charge allows a lender to appoint an administrator out of court and to take security over a broader range of assets. Even so, the exact configuration of security over a company’s assets is often...

NOTE—to see whether notification thresholds in the EU and throughout the world are met, see further: Where to Notify. 1. Have there been any recent developments regarding and are any updates/developments expected in the coming year? Are there any other ‘hot’ issues? As of 12 January 2023, Regulation 2022/2560 on Foreign Subsidies ( FSR) came into force. With this instrument, the Commission aims to tackle potential distortions to competition within the EU arising from significant financial support granted by non- Member States. The FSR imposes compulsory notifications for concentrations and public procurement procedures that cross specified thresholds, and also authorises the Commission to open ex-officio inquiries into foreign subsidies in other settings. For mergers, from 12 October 2023, the FSR requires a separate, standalone filing—on top of any required merger control notification—for deals meeting the following criteria: (i) the target, joint venture, or at least one...

Scope of this Practice Note Following an October 2008 European Commission review concluding that the original Electronic Money Directive was restraining growth in the e-money market, a second Electronic Money Directive ( Directive 2009/110/ EC) (2EMD) was adopted by the European Parliament and the Council on 16 September 2009, revoking the first directive. European Member States were obliged to transpose the new regime by 30 April 2011. This Practice Note gives an overview and highlights the key provisions of 2EMD. It also examines changes to 2EMD introduced by the recast Payment Services Directive ( Directive 2015/2366/ EU) ( PSD2). Background to the second Electronic Money Directive The first Electronic Money Directive ( Directive 2000/46/ EC) was to be implemented by EU Member States by 27 April 2002. In October 2008, the European Commission found that the framework created by the EMD was impeding...

This Practice Note traces differences between European Market Infrastructure Regulation ( EU) 648/2012 ( EU EMIR) and Assimilated Regulation ( EU) 648/2012 ( UK EMIR). How to use this Practice Note Use this Practice Note as a navigational aid when reviewing Assimilated Regulation ( EU) 648/2012 ( UK EMIR), by comparing it with the parallel provisions in Regulation ( EU) 648/2012 ( EU EMIR). Set out below are links to all Articles and Annexes in UK EMIR and EU EMIR respectively. Each section provides: the relevant Articles and Annexes as they currently stand, including: the latest changes made, when they were made, and details of the implementing/amending/repealing legislation proposed reforms to specified Articles a brief summary of points of divergence (ie how the...

Direct tax treatment of leases—other transactions For the direct tax analysis of landlords and tenants on the grant of leases, see Practice Note: Direct tax treatment of leases—grant of a lease. This Practice Note addresses the direct tax position of landlords and tenants for other dealings concerning leases, chiefly assignments, surrenders and variations of existing leases. The VAT and stamp duty land tax ( SDLT) consequences of these transactions are also crucial in determining the parties’ overall tax position; see the following Practice Notes: VAT issues for new and ongoing leases VAT issues for lease assignments and terminations SDLT chargeable consideration—leases SDLT—common lease transactions Consistent with the approach to lease grants, the tax treatment of transactions affecting existing leases depends on a range of factors, including the parties’ tax status, the term of the lease and the purpose for which the transaction is undertaken. The legal mechanics of...

A restricted group of individuals who were, in some respect, reliant on the deceased (ie dependants) may pursue a claim under the Fatal Accidents Act 1976 ( FAA 1976). See Practice Note: Law Reform Act or Fatal Accidents Act? Where a death stems from negligence that would have entitled the injured person to seek and recover damages, the party who would have been liable had the death not occurred remains fully liable to an action for damages, notwithstanding the death of the injured person. When proceedings are issued for the benefit of dependants, a new cause of action arises; however, success is conditional on showing that the deceased would have recovered damages if they were still alive. Only one claim can be advanced on behalf of all dependants, collectively and together. Awards, other than for bereavement, when made, are apportioned between the relevant...

This Practice Note outlines the reasons, timing and process by which an offeror may withdraw a Part 36 offer. It also indicates when permission is necessary, the correct destination for any application, and the impact of withdrawing a Part 36 offer. Why withdraw a Part 36 offer? As set out below, once a Part 36 offer is withdrawn, the automatic Part 36 costs consequences do not apply ( CPR 36.17(7)(a)). At times, an offeror might opt to leave a Part 36 offer sitting open, hoping the offeree overlooks it and that, if the dispute reaches trial, the outcome betters that offer. There is, however, a tangible risk to that tactic. The offeree may not have forgotten the offer and could accept it unexpectedly, particularly if developments in the case mean its original terms are no longer favourable (or as favourable) to the offeror. Moreover, where a clear and...

The duty of care Healthcare practitioners owe their patients a duty of care. That obligation, arising in the course of their care, requires the exercise of reasonable care to: obtain a full and adequate medical history thoroughly explore the patient’s symptoms and concerns formulate appropriate and reasonable differential diagnoses arrange referrals to relevant specialists where required take action to pursue all reasonable measures to safeguard the patient’s health deliver a reasonable and proportionate course of treatment follow up with the patient afterwards where that is reasonably necessary For guidance on identifying the proper defendant in a clinical negligence claim, see Practice Note: Identifying the correct defendant in clinical negligence claims. The duty is not confined to medical practitioners alone; it may extend further. Non-clinical staff Employees within a healthcare organisation or facility may owe a direct duty to...

Background The Access to Justice Act 1999 ( AJA 1999) created the Legal Services Commission ( LSC), which replaced the Legal Aid Board with effect from 1 April 2000. The Act also introduced the Community Legal Service ( CLS). It set out that legal service providers (for clinical negligence, solicitors) who were members of the CLS could, subject to eligibility criteria, obtain public funding for clients in civil matters, except those excluded by AJA 1999, Sch 2. Under AJA 1999, Sch 2, CLS funding was not to be awarded in respect of allegations of negligently caused injury, death or damage to property. Critically, allegations concerning clinical negligence were left out of this restriction. Accordingly, provided the eligibility tests were satisfied, a clinical negligence claim could still secure public funding after 1 April 2000. Thus, after 1 April 2000, clinical negligence matters continued to fall within scope of...

This Practice Note outlines the main formats an offer to settle a dispute may take, including open offer letters, Calderbank (without prejudice save as to costs) ( WPSAC) letters and Part 36 offers; it assesses their respective pros and cons, the implications for costs exposure, and how to draft these offer letters. For wider guidance on without prejudice communications, including Calderbank ( WPSAC) letters, see Practice Notes: Without prejudice communications, Without prejudice explained and Without prejudice—exceptions to protection from admissibility... Although this Practice Note only summarises the core features of Part 36 settlement offers, comprehensive guidance on making, receiving, varying, accepting and rejecting a Part 36 offer, together with detailed precedents, is available at: Part 36 offers—overview... For advice on making an offer or recording a settlement, and on drafting settlement agreements, see Practice Notes: • Settling disputes—how to document a settlement • Settling...

Unless an institution is set up solely for charitable purposes, it cannot be a charity. Statute (the Charities Act 2011 ( CA 2011)) provides guidance: for the law of England and Wales, a charitable purpose is a purpose that falls within section 3(1), and is for the public benefit (see section 4). Accordingly, the definition adopts a two-limbed approach; the first limb requires a proposed purpose to align with a defined list, and the second concerns public benefit. That list is far more substantial and encompassing than earlier lists, and is considerably broader and more inclusive than those that preceded it......