Legal Practice Notes

In Thorner v Major, Lord Walker opened his judgment by citing Simon Gardner’s Introduction to Land Law (2007), observing that no definition of proprietary estoppel manages to be both exhaustive and beyond dispute, and that many efforts have achieved neither. This was Lord Walker’s opening point. He went on to note that most commentators concur that the doctrine rests on three core ingredients, though phrased in varied ways, as they put it differently: an assurance or representation made to the claimant; the claimant’s reliance upon it; and detriment suffered by the claimant as a result of that (reasonable) reliance. The overarching requirement, or touchstone, is unconscionability: unless holding the promisor to the promise would be unconscionable, the court will grant no relief. Once a right to relief is established, the court must devise an appropriate remedy. That question was central in the Supreme...

The majority of projects rest on an intricate network of contractual ties among every participant in the scheme (eg the project company, equity backers, contractors, sub-contractors, off-takers and suppliers). Collectively, these papers are generally known as the 'project documents' in practice (see: Project documents—issues for lenders—overview). In numerous schemes, the operation and maintenance contract ( O& M Contract ) often ranks among the key project documents. What is an operation and maintenance contract? In a standard project finance deal, the project company is typically a special purpose vehicle ( SPV ) established solely for the aims of the project (see Practice Note: Project finance—key project parties). Where the project company is an SPV, it typically lacks the capability to run or look after the project in-house, and therefore enters into an O& M Contract with a suitably skilled contractor (the O& M...

This Practice Note Explores the allocation of risk and the insurance obligations within the NEC Engineering and Construction Contract ( ECC). It identifies the insurances each party is expected to maintain, including Contractor’s All Risks insurance and public liability cover, and indicates the scope of cover to be in place... For wider context on NEC3 and NEC4, and how insurance is addressed under other standard forms, see: Practice Note: NEC contracts—introduction Practice Notes: JCT contracts—insurance, FIDIC contracts 2017—insurance and FIDIC contracts (pre-2017 editions)—insurance This guidance applies to both the NEC3 and NEC4 editions of the ECC. For consistency, the term ‘ Client’ is used throughout, aligning with NEC4 usage for the developer/employer (the NEC3 ECC uses ‘ Employer’). For defined NEC expressions, refer to Practice Note: NEC contracts—glossary. Where no distinction is made between clause numbers, all clause references in this Practice Note are...

Elements of the offence of possession of controlled drugs Section 5 of the Misuse of Drugs Act 1971 ( MDA 1971) creates the offence where a person has a controlled drug in their possession. The prosecution must demonstrate, to the criminal standard (see Practice Note: Burden and standard of proof in criminal proceedings), that: the material concerned is a controlled drug it was within the defendant’s custody or control, and the defendant knew, or ought reasonably to have known, of the drug’s existence. See R v Lewis (1988) 87 Cr App Rep 270 (not reported by Lexis Nexis®). Possession of a controlled drug is an offence triable either way, before the magistrates’ court or the Crown Court. Under MDA 1971, s 37(3), the concept of possession extends to items held by another person but remaining under the defendant’s control. Consequently, to establish possession, the...

Control of development Under section 57 of the Town and Country Planning Act 1990 ( TCPA 1990), planning permission is needed for the undertaking of any development of land. For these purposes, “land” in TCPA 1990, s 336(1) denotes any corporeal hereditament, including a building. The court has determined that, in coastal areas, the territorial reach of planning control under the TCPA 1990 goes only to the mean low water mark, so the sea bed beyond that mark does not come within planning control. “ Development” in TCPA 1990, s 55(1) covers: the carrying out of building, engineering, mining or other operations in, on, over or under land; or the making of any material change in the use of any buildings or other land. Accordingly, the TCPA 1990 governs two separate kinds of development: operational development and material changes of use. This Practice Note focuses on...

When are mandate letters used? Mandate letters are ordinarily executed at the outset of a deal and are frequently appended to an agreed term sheet. They most commonly arise in syndicated transactions, serving to record the engagement terms between the borrower and the lenders that will front the syndication for the transaction (the Mandated Lead Arrangers, or MLAs). They also capture the agreed approach to the syndication of the debt. For further detail, see Practice Note: How to draft and negotiate mandate letters in loan transactions. The Loan Market Association ( LMA) has two forms of mandate letter: both underwritten and best efforts. Members may obtain these documents via the LMA website. Under an underwritten mandate letter, the underwriters (often the same entities as the MLAs) commit to advance a specified share of the required debt which, in aggregate, is sufficient to fund the full...

This Practice Note explains the roles performed by bills of quantities (‘ Bo Qs’) under the JCT forms of contract, the matters parties ought to weigh up and the contents of Bo Qs, alongside some hands-on pointers. It concentrates on the 2024 editions of the JCT forms, while noting that comparable provisions appear in earlier versions. The JCT describes Contract Bills (eg in clause 1.1 and the Second Recital, JCT Standard Building Contract With Quantities 2024) as ‘the fully priced bills of quantities referred to in the Second Recital’. In broader terms, Bo Qs are schedules setting out units, quantities, rates and totals for items of work, materials, components and labour, itemised in line with an industry‑recognised standard method of measurement. Typically prepared by the Employer’s consultant, they are derived from the drawings and specifications issued at tender. They accompany the tender so that all...

FORTHCOMING CHANGE relating to UK permanent establishments: Following a prior 2023 consultation, on 28 April 2025 the government opened a technical consultation on draft legislation overhauling the UK permanent establishment ( PE) regime to: (i) bring domestic profit attribution rules for PEs into line with the latest OECD materials and the interpretation of the ‘separate enterprise principle’, (ii) refresh the domestic meaning of a dependent agent PE in accordance with the 2017 OECD Model Tax Convention, (iii) revise the reach of the investment manager exemption, (iv) harmonise the domestic treatment of gains linked to PEs with the 2017 OECD Model Tax Convention, and (v) make knock-on changes so PE concepts are applied consistently across UK tax law. Draft legislation was published for technical comment as part of this exercise. The draft rules do not change the content or...

This Practice Note: provides a synopsis of the three principal forms of fund finance: capital call facilities (often referred to as equity bridge facilities) net asset value ( NAV) (or asset backed) facilities hybrid facilities examines green and sustainability-linked finance, together with some types of fund-related finance, GP/ Manager facilities and co-invest facilities sets out key security and documentary considerations, including financial covenants, representations, undertakings, events of default and prepayment events The capital call facility market is well-established and largely standardised, though approaches to assessing investor creditworthiness and differences driven by varied fund structures can diverge. By contrast, NAV facilities and hybrid facilities are highly flexible, taking multiple forms with differing security packages and covenant...

' Handover' under an EPC contract The notion of ‘handover’ within an EPC contract is of central importance. It identifies the moment when the EPC contractor’s primary obligations conclude and when the contractor’s potential liability for delay damages falls away. It likewise marks the point at which the employer assumes possession of (and typically responsibility for) the site and, in many instances, when the facility can begin commercial operation. Closely connected to handover are the processes of testing and commissioning. Whether such steps are mandated under an EPC agreement will depend heavily on the character of the facility being delivered. Where the facility comprises infrastructure, such as a road or a bridge, detailed testing and commissioning provisions are less likely to be necessary. By contrast, where the works include complex mechanical and electrical systems, testing and commissioning become essential. For power plants and...

This Practice Note examines harm caused by tree roots, covering the neighbourly duty, issues of foreseeability and causation, practicable steps to avoid or reduce damage, and available remedies. Liability The leading authority on property damage from intruding tree roots is Delaware Mansions v Westminster City Council. The House of Lords held that responsibility is assessed by applying nuisance principles: reasonableness between neighbours—both literal and figurative—and reasonable foreseeability. The court stressed that attaching the label ‘nuisance’ or ‘negligence’ is of little significance; the common law instead concentrates on working out the fair and just content, and incidents, of a neighbour’s duty, rather than fixing a label and inferring the scope of the duty from it. In practice, liability turns on these questions: What obligations exist between neighbours in relation to trees? Did the tree’s roots cause damage to the adjoining property? Was that harm reasonably to be...

Drafting — Perpetuities and Accumulations Act 2009 Under the Perpetuities and Accumulations Act 2009 ( PAA 2009), the rule against perpetuities no longer applies to easements created on or after 6 April 2010. As a result, a drafter does not need to set a perpetuity period within which the right must vest (i.e. take effect). Even so, many grantors still include a specified vesting period to secure the comfort of knowing the easement will cease to be relevant if it does not vest within that timeframe. Any conditions within the grant itself that regulate how the easement is exercised will, of course, remain in force. Due diligence — future easements The perpetuity rule continues to govern easements granted before 6 April 2010. The rule causes no difficulty where the subject matter of the right exists at the date of grant. For instance, a right to use...

What does this Practice Note cover? It is not solely banks and financial institutions that engage in derivative transactions; a wide range of entities—such as companies and universities—also participate. This naturally brings into focus a party’s capacity to enter into derivatives. The legal questions around capacity in the derivatives sphere are intricate and require careful analysis. Parties will wish to be confident that their counterparty has capacity to enter into the transaction, as a lack of capacity may result in the agreement being void from the outset on ultra vires grounds. This Practice Note explains: the principal issues to consider when assessing, in general terms, an entity’s capacity to enter a derivatives transaction; the key points to review when evaluating a signatory’s authority to execute derivatives documentation; and matters relating to the most common types of...

This Practice Note explains the differences between the assessment of costs on the standard basis compared to the indemnity basis. It further addresses costs payable under a contract, noting that the court does not have to assess those sums ( CPR PD 44, para 7.1). Guidance is also included on the selection of legal representatives and how that choice influences the reasonableness of the costs claimed. When attempting to recover expenditure arising in the proceedings, the recoverable sum will usually be lower than the total actually incurred. Where the parties cannot reach agreement, the court will frequently carry out an assessment. For direction on the available assessment routes, see: Summary assessment—overview Practice Note: Provisional assessment Detailed assessment—overview Note that costs are only recoverable to the extent they do not breach the indemnity principle; see Practice Note: Costs and the indemnity...

Concurrent lease In the setting of residential block arrangements, a concurrent lease is a lease of the reversion granted by a developer, typically to a management company, after it has already granted the separate flat leases to the respective purchasers of those flats. It is, in effect, an intermediate lease that stands between the developer (as freeholder, or as holder of a superior leasehold interest) and the flat tenants. For additional guidance, see Practice Note: Concurrent leases. This type of lease is sometimes also described as an ‘overriding lease’. That usage, however, risks confusion with the lease available to a former tenant or guarantor under section 19 of the Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995). For that reason, it is preferable to use the term ‘concurrent lease’ in this residential flats context......

General A rent deposit is a sum lodged by a tenant on taking a lease, serving as security against unpaid rent and other breaches of the lease. It is commonly required where a lease is granted or assigned and the incoming tenant cannot demonstrate adequate financial standing to the landlord. A deposit might be provided instead of, or alongside, a guarantee to bolster the tenant’s covenant strength. In commercial leasing, it is routine for a rent deposit to be held either by the landlord or by an independent stakeholder. For broader guidance on commercial rent deposits, see Practice Note: Rent Deposit Deeds— Commercial Leases. That Practice Note examines how a landlord may deal with rent deposits when a corporate tenant enters an insolvency procedure (with a principal focus on administration). The landlord’s position is largely determined by the manner in which the deposit is...

What are Category 4 Screening Levels? Category 4 Screening Levels ( C4SL) offer technical direction for environmental consultants and regulators when evaluating land impacted by contamination. By comparing soil contaminant concentrations with C4SL values, a preliminary judgement on risks to human health can be formed. C4SL is integral to the contaminated land regime. Where soil results fall beneath the relevant C4SL thresholds, regulators may decide the site is plainly not contaminated land. These screening benchmarks can also be cited in environmental reports lodged by developers with planning applications. Role of C4SL in the contaminated land regime Local authorities have a statutory obligation under Part IIA of the Environmental Protection Act 1990 to identify and secure remediation of contaminated land within their areas. See Practice Note: Contaminated land—local authority duty to inspect land. Sites should be determined as ‘contaminated land’ if they satisfy the statutory...

NOTE—to check whether notification thresholds in Cameroon, and across the globe, are satisfied, consult: Where to Notify. 1. Introduction Cameroon’s merger control framework is set out in Articles 14 to 20 of Law No. 98/013 dated 14 July 1998 (the Competition Law). Mergers and acquisitions must be filed on a mandatory basis where the relevant financial thresholds are met, with notification required to the National Competition Commission (the Commission). The Commission is an autonomous authority empowered under title 3 of the Competition Law and is the body authorised to investigate and approve a merger. Its determinations may only be reviewed, as both first and final instance, by the Yaoundé Court of First Instance......

Once secured creditors have been satisfied, the trustee in bankruptcy (trustee) must allocate the remaining estate in line with the prescribed order of payment. Expenses To begin with, the trustee must meet the costs and expenses of the bankruptcy. The Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, r 10.149 specify that bankruptcy expenses are payable from the bankrupt’s estate in this order: expenses or costs which: are properly chargeable to, or incurred by, the official receiver ( OR) or the trustee in safeguarding, realising or recovering any of the bankrupt’s assets, or otherwise relating to the conduct of legal proceedings which the OR or trustee has power to bring or defend (whether the underlying claim forms part of the bankrupt’s estate or not) concern the...

Although this Practice Note focuses chiefly on commercial property issues, it also addresses certain residential points. On any sale of property, both expenditure and any receipts must be apportioned between seller and purchaser for the relevant period. On the grant of a new lease, one must work out the rent due from the tenant for the interval from the start date to the next scheduled rent payment date. If a lease ends before its contractual expiry (for example following the exercise of a break clause), the parties should consider whether any advance rent requires repayment and, if so, determine the correct amount. ( In these circumstances, a tenant is entitled to a rent rebate only where the lease contains clear language to that effect ( Marks and Spencer v BNP Paribas). For more detail, see Practice Note: Break clauses and...