Legal Practice Notes

Interpreting the social care framework in Part 1 This Practice Note explains the framework governing local authority responsibilities for arranging and funding social care in England as established by the Care Act 2014 ( CA 2014). It addresses the overarching duties that significantly shape local authorities’ wider obligations regarding the commissioning of health and social care services. CA 2014, Pt 1 delineates the scheme of local authority duties for the organisation and financing of social care. It sets out a series of general duties that materially influence local authorities’ broader obligations concerning the commissioning of health and social care provision. Those overarching duties markedly affect authorities’ overall obligations for commissioning health and social care. This Practice Note concentrates on the principal requirements of CA 2014, Pt 1. For the purposes of this Practice Note, ‘local authority’ denotes a county council in England, a district council for an area in...

Practice Note: Restitution for wrongful acts This note outlines the categories of civil wrongs that may attract a restitutionary response. Where the wrong consists of a fiduciary breach yielding a profit to the defendant, the court may, in its discretion, require the defendant to: account for the gains realised pay equitable compensation be treated as holding the profit on constructive trust, where it derives from the principal’s property or from an opportunity that ought to have been available to the principal It explains the range of remedies potentially available when a fiduciary has failed to comply with their fiduciary obligations. Fiduciaries and their duties A fiduciary is a person who agrees to act for, and on behalf of, another in a particular matter in circumstances creating a relationship of trust and confidence ( Boardman v Phipps). Breaches of fiduciary duty commonly arise in employment settings or where a company...

This Practice Note considers Employer’s Requirements (often abbreviated to ERs) within a building contract. It clarifies what Employer’s Requirements are and explains that, depending on the procurement route and the form of contract, the party bearing responsibility for them may differ. It also outlines how certain standard forms address Employer’s Requirements and notes the relevance of the CIS v Henry Boot decision. What are Employer's Requirements? In JCT and FIDIC contracts, ‘ Employer’s Requirements’ ( ERs) describes the documents issued by the employer that set out its project needs, on which the design and construction of the works are founded. These typically include: performance specifications drawings initial designs The NEC suite takes a different tack. Under NEC3, the employer’s requirements are contained within the ‘ Works Information’, identified in Part One of the Contract Data. NEC4 adopts the same structure as NEC3, but...

Introductory observations Claims for knowing receipt (sometimes termed ‘unconscionable receipt’) and dishonest assistance are often grouped as ‘accessory liability’ because they target a defendant implicated in causing the claimant’s loss in an ancillary or secondary capacity. Liability may arise by dishonestly helping another to breach a trust or fiduciary obligation owed to the claimant, or by receiving trust property with knowledge that it follows a breach of trust or fiduciary duty. In this way, the defendant’s potential responsibility is secondary to the principal wrongdoing of the breach. That said, Lord Burrows in Byers v Saudi National Bank considered that a personal claim in knowing receipt is materially different from the accessory nature of a dishonest assistance claim ( Byers is discussed further below). Dishonest assistance and knowing receipt claims frequently emerge where there has been some fraudulent or wrongful conduct in which the...

Once a duty of care is confirmed (see Practice Note: Negligence—when does a duty of care arise?), the next step is to assess whether that duty has been breached. The answer turns on several factors outlined below and is judged against the objective baseline of reasonableness, taken from an impersonal standpoint and the general background against which reasonableness is assessed. Breach of duty of care—reasonableness To decide if there has been a breach, the law applies the artificial, objective measure of the ‘reasonable person’, setting aside the realities of the defendant’s position insofar as their abilities diverge from that norm, notwithstanding any inexperience or personal shortcomings ( Glasgow Corpn v Muir, per Lord Macmillan). Breach of duty of care—objectivity This objective demand for a reasonable level of competence covers skills attainable only through training and effort, as well as ordinary attributes most people are expected to have....

This Resource Note summarises the principal provisions of Rule 3 of the City Code on Takeovers and Mergers (the Code), addressing the obligation on the offeree’s board (and, in certain situations, the offeror) to obtain suitably qualified, independent advice on the financial terms of an offer. It signposts pertinent materials, commentary and guidance from the Panel on Takeovers and Mergers (the Panel), alongside Lexis+® UK analysis and related resources, to provide practical direction on the interpretation and application of Rule 3. Materials addressed in this Resource Note include, among others: the detailed notes accompanying the Code ( Notes), which elaborate on how the Rules are intended to be implemented, together with relevant Appendices dealing with particular, specific issues where relevant Practice Statements from the Panel Executive (the body responsible for the day‑to‑day supervision and regulation of takeovers) ( Executive), offering informal guidance on how the...

This Practice Note sets out the distinct stamp duty land tax ( SDLT) provisions that arise where a stake in land is moved into a partnership by one or more partners, or by individuals connected to them. It also covers transfers made when the partnership is first established. SDLT no longer applies to any land transaction concerning interests in or over land situated in Scotland from 1 April 2015. From that date, land and buildings transaction tax ( LBTT) governs those transactions, subject to transitional rules. For more information, refer to the LBTT subtopic. Likewise, SDLT stopped applying to any land transaction involving interests in or over land in Wales from 1 April 2018. From that date, land transaction tax ( LTT) applies to those transactions, again subject to transitional provisions. For additional detail, see the Wales: LTT subtopic......

What are ‘premises’? Although the Occupiers' Liability Act 1957 ( OLA 1957) regulates the liability of those who occupy or control premises, the statute does not define the term. The expression is to be interpreted very widely and embraces: any fixed or moveable structure, including any vessel, vehicle or aircraft; this covers both permanent and temporary structures such as scaffolding and ladders. In Furmedge v Chester- Le- Street District Council a company that installed a large inflatable sculpture was found liable when high winds tore it from its moorings land itself (so the owner of a park, field or garden falls within OLA 1957) railway lines airport runways ( Monarch Airlines v London Luton Airport [1998] Lloyd's Rep 403, [1997] CLC 698 (not reported by Lexis Nexis®)) harbour waters When will a potential claimant be a ‘lawful...

This Practice Note explores why experts meet and the range of possible approaches available in practice. It clarifies the standing of expert-to-expert discussions and any joint statement, and examines how far any consensus between experts may bind the parties to the litigation. It offers guidance on reading and applying the pertinent CPR provisions, and on how they should be understood in context and applied appropriately. For further provisions, see the Court specific guidance below. Expert witnesses and those instructing them are expected to comply with the following: the Guidance for the instruction of experts in civil claims ('the Guidance') Practice Direction Pre- Action Conduct and Protocols, para 7 Conventional directions for experts’ meetings and joint statements The court may require an exchange of experts’ initial reports and, frequently under CPR 35.12, will order a subsequent, without prejudice, joint discussion between the experts in each...

Status of a confiscation order Strictly speaking, a confiscation order requires the offender to pay a sum to the state, reflecting the benefit obtained through the defendant’s offending. Its principal aim is restorative, though it includes punitive features. There are two phases to confiscation proceedings: the court first makes the confiscation order; and its enforcement is then secured. Once imposed, the order operates as a statutory debt and, for certain purposes, is treated in the same way as a fine. Collection and enforcement are carried out by the specified magistrates’ court or, if none is named, by the committing magistrates’ court. The order will also include a default term to be served if payment is not made. See Practice Note: Default term in confiscation. A confiscation order is commonly described as an order in personam rather than in rem, and it does not affect...

Roles, powers and duties of administrators The essence of an administrator’s function is to fulfil one of the three statutory objectives of administration set out in Schedule B1, paragraph 3 of the Insolvency Act 1986 ( IA 1986). In doing so, an administrator represents all creditors, rather than only the party who appointed them. Appointment can be made by court order or out of court by filing specified forms at court. For further information on administration, including its aims and effect, see Practice Note: Administration—an introductory guide. The framework for an administrator’s role, powers and duties is contained in IA 1986 and the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024. An administrator’s powers, found in IA 1986, Sch B1, paras 59–64 and IA 1986, Sch 1, are extensive—covering control of the company’s affairs, entering into contracts, selling assets, and more. An...

Practice Note This Practice Note considers situations where a person has overpaid tax (that is, paid tax that was not in fact due) and their ability to recover that sum under the common law of restitution. It applies to both direct taxes and VAT and addresses the taxpayer’s rights to reclaim such amounts... Direct taxes VAT Overpayments arise for a range of reasons, though a significant number of court cases have concerned tax charged in breach of EU law. A taxpayer should first determine whether they have, or previously had, a statutory route to recover overpaid tax, see Practice Note: Overpaid tax—the statutory regimes. If a statutory right exists, the terms of that legislation may bar a common law restitution claim, even where the statutory claim is now out of time... This Practice Note cites EU-derived law and case...

Once the Will has been drafted, the solicitor must arrange for the client to sign it, with the signing properly witnessed. For guidance on the formal requirements for a valid Will, see Practice Notes: Requirements for a valid Will— Formalities and Validity of Wills—signature. Practical considerations for signing the Will There are typically two ways to execute the Will: signing at the office of the drafting solicitor, under their supervision, or the testator signing at home. The home option is generally not advised, as signing before the solicitor gives greater assurance that all formalities have been met. If execution has to take place without the solicitor present, the solicitor must give the testator clear, detailed directions. This is usually provided via a standard form sent with the Will. The form can be in any layout the solicitor selects, so long as it sets out key...

In the wake of the 2008 banking crisis, the government overhauled the UK financial services regulatory framework. One significant outcome was the creation of the Prudential Regulation Authority (the PRA). As a legally separate subsidiary of the Bank of England (the Bank), it is accountable to the Bank's Court of Directors. The PRA's chairman and chief executive are both Bank executives. For further detail on the PRA's set-up, see Practice Note: Prudential Regulation Authority—structure, functions and duties. The PRA is responsible for micro to prudential regulation of firms that undertake PRA-regulated activities. The Financial Conduct Authority ( FCA) acts as the prudential regulator for firms that do not undertake PRA-regulated activities, and is the conduct regulator for all firms prudentially regulated by either the PRA or the FCA. The purpose of this Practice Note is to explain which regulated activities...

Corporation tax deduction for costs incurred in setting up and operating employee share schemes Outlays linked to establishing and running an employees’ share scheme can qualify for corporation tax ( CT) relief, either by virtue of targeted statutory rules or under the general provisions for corporate spending. Whether a deduction is available depends on the type of employee share arrangement the business operates. The position is determined by the nature of the scheme adopted by the company. For background on corporation tax, including rates and when they apply, see Practice Note: What is the basis of corporation tax? Specific legislative provisions Share incentive plans ( SIPs) A share incentive plan ( SIP) is a tax-favoured employee share scheme through which staff may obtain shares in their employer (or the employer’s parent) that are kept within a SIP trust for a set period. For more on SIPs, see...

A ‘sub-fund’ exists where specified trust assets are held on terms that are separate and distinct from those applying to the rest of the trust property. A single trust may comprise any number of such sub-funds, each subject to its own terms. Ordinarily, the same people act as trustees for all the trust assets; however, different trustees can be appointed to manage one or more particular sub-funds. One trust or more? For example, trustees of a discretionary trust might use part of the fund to buy a property for a beneficiary to live in. Using their overriding powers, they grant that beneficiary an interest in possession and a right to occupy the home for life, for as long as they wish to remain. When that interest comes to an end, the property reverts to the original discretionary provisions. For the duration of the interest in...

Reliable cash flow underpins the construction sector—without it, schemes would swiftly stall and delivery would suffer. Where both sides owe money to one another (for instance, an employer must pay the contractor for completed works, yet the contractor owes the employer for damage caused during those works), it is commercially sensible to use a device that results in a single net payment rather than two separate transfers between the parties involved. That device is ‘set-off’. This Practice Note outlines set-off (in general terms and within the construction sphere), describes how it operates day to day and provides practical pointers and issues to consider when handling set-off under construction contracts. What is set-off? From a commercial perspective, set-off is a tool parties use to regulate cash flow across their dealings. It permits opposing monetary claims to be netted off so that only one balance is payable...

Practice Note This Practice Note outlines the general SDLT treatment of partnerships, clarifying what qualifies as a partnership for SDLT and how such bodies sit within the wider SDLT framework. It also addresses transfers of interests in a partnership. It explains: which entities and arrangements are treated as partnerships for SDLT the SDLT treatment applicable to partnerships how SDLT operates where a partnership buys a chargeable interest in land from an unconnected party who must file returns and pay SDLT together with any associated liabilities Separate Practice Notes cover what the SDLT legislation terms: special transactions (that is, acquisitions from and disposals to connected persons or partners of a partnership), see Practice Notes: SDLT and partnerships—transfers to a partnership and SDLT and partnerships—transfers from a partnership anti-avoidance rules and reliefs, see Practice Note: SDLT and...

This Practice Note Sets out details of stamp duty land tax ( SDLT) anti-avoidance provisions and SDLT reliefs that apply specifically to partnership transactions. It explains: how anti-avoidance rules of general application may operate for partnerships which additional anti-avoidance rules are aimed at partnership dealings, and how general reliefs work for partnership transactions In broad terms, SDLT anti-avoidance rules and reliefs apply to partnerships as they would to the constituent partners. However, some general provisions are modified and there are extra rules targeted at partnerships, including: rules governing transfers of interests in property investment partnerships are, in essence, anti-avoidance measures where a chargeable interest moves from a corporate partnership to a partner, the usual treatment may instead require a claim to group relief to eliminate the SDLT charge, and a withdrawal of value by a partner can trigger an SDLT...

What a residuary gift comprises A residuary estate need not consist solely of cash; it typically encompasses other assets left unsold during the course of administration. Section 33 of the Administration of Estates Act 1925 ( AEA 1925) describes the residuary estate as the residue of money and any investments then representing it, and includes any part of the deceased’s estate retained unsold that is not required to satisfy funeral, testamentary and administration expenses, debts, other liabilities, and pecuniary legacies. This applies whether: the testator tried to dispose of it but did not succeed, or the disposition fails by lapse or another event Unless the Will indicates otherwise, a residuary gift covers everything the testator owns at death that has not been effectively disposed of by other provisions in the Will. A distinction is drawn between: a gift of the residuary estate a gift of the...