Legal Practice Notes

This Practice Note explores the availability of proprietary remedies (that is, remedies attaching to specific property, as opposed to a personal remedy, for example a damages claim) in the wake of rescission and rectification. Where a contract (or a gift) has been rescinded, or a contract has been rectified, one party may find themselves having incurred some loss as a consequence of the rescission or rectification. For example, when a contract is unwound the purpose is to restore the parties to the position they would have occupied as if the contract had never been made; yet, before rescission, property may have moved from one party to another, or to someone else. In that way, a claim in restitution may become available to deliver an appropriate form of relief. Such relief focuses on the property itself alone. What is...

Prepared in collaboration with Bilal Shaukat, partner, and Shahbakht Pirzada, associate partner, at Pakistani law firm RIAA Barker Gillette, on key issues concerning merger control in Pakistan. Note—to check whether notification thresholds in Pakistan and across the globe are satisfied, see Where to Notify. 1. Have there been any recent developments regarding the Pakistani merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Pakistan? The Competition Commission of Pakistan ( CCP) has recently issued the Competition Exemption Regulations 2020 (2020 Regulations). These Regulations set out the procedure for seeking an exemption from a prohibited agreement. The Competition Act 2010 (the Act) forbids undertakings and associations of undertakings from entering into prohibited agreements. Prohibited agreements—or, for associations of undertakings, decisions—concern the production, distribution, acquisition or control of goods, or the supply of...

The Presumption of Death Act 2013 ( PDA 2013) The PDA 2013 came into force on 1 October 2014 and applies solely to England and Wales. Before its commencement, a common law rebuttable evidential presumption treated a person as dead after a seven-year absence, alongside a patchwork of statutory measures (eg section 19 of the Matrimonial Causes Act 1973 ( MCA 1973) and section 37 of the Civil Partnership Act 2004 ( CPA 2004)) setting out specific procedures for different aspects of a missing person’s property and affairs, under which a missing person might be presumed deceased. PDA 2013 created a single mechanism to obtain from the High Court ( Family Division or Chancery Division) a declaration that a missing person is deemed to have died, effective for all purposes. The court must grant the declaration if satisfied that the missing person has died, or has not...

The templates set out here derive from the examples in Chapter 15 of Cretney and Lush on Lasting and Enduring Powers of Attorney. It also supplies model clauses intended for use within health and welfare lasting powers of attorney ( LPAs) herein. For drafting language tailored to property and financial affairs LPAs, refer directly to: LPA precedent instructions and preferences—property and financial affairs LPAs. For clauses that fit either property and financial affairs or health and welfare LPAs, consult: LPA precedent instructions and preferences—property and financial affairs and health and welfare LPAs. For further guidance on LPA instructions and preferences, see Practice Note: LPAs—instructions and preferences......

What is a special manager? Origin of the role of the special manager Prior to the Insolvency Act 1986 ( IA 1986) taking effect, the official receiver ( OR) could, under section 556 of the Companies Act 1985 (then in force), ask the court to appoint a special manager over a company’s undertaking or assets. The route was used where the OR believed that, owing to a distinctive aspect of the company’s operations or property, creditors’ interests would be best served by installing someone with particular know‑how to take charge of the business or property. IA 1986 widened the ambit of this appointment power considerably. An application may now be brought in both corporate and personal insolvencies. The court process was invoked to secure specialist control when necessary. Special managers under IA 1986 In essence, a special manager is a person with specialist abilities or...

What does this Practice Note cover? This Practice Note outlines the drafting of an offering memorandum ( OM) for offerings conducted in reliance on Rule 144A (17 CFR § 230.144A) and Regulation S under the Securities Act of 1933, as amended (the Securities Act). It provides an overview of the usual drafting workflow, disclosure obligations, and the sections commonly included in an OM. For a Rule 144A/ Regulation S transaction, the offering document is generally called an 'offering memorandum' or 'offering circular' (rather than a 'prospectus', the term used for the offering document for a registered offering). As with other offering documents, a Rule 144A/ Regulation S OM performs two principal roles: It serves as a disclosure document prepared to satisfy applicable securities law disclosure requirements and to lessen potential liability risk for offering participants under those laws. It also often functions as the...

This Practice Note sets out an overview of Lloyd’s of London, alongside its governance and regulatory architecture. It explains how members and managing agents place insurance and reinsurance, and maps the Society of Lloyd’s various connections with members, managing agents, members’ agents, syndicates, brokers and coverholders. It also looks at Lloyd’s of London’s overall capital model, commonly called the Chain of Security, and gives a brief outline of the Society’s investigatory and enforcement powers. What is the Lloyd’s market? The Lloyd’s market is an insurance marketplace tracing its roots to the seventeenth century. Traders gathered at Edward Lloyd’s coffee house in London, arranging insurance cover for one another’s ventures. As global commerce moved largely by sea, until late in the nineteenth century the risks insured at Lloyd’s were almost entirely marine. Today, the Lloyd’s market underwrites risks across most classes of business. At Lloyd’s,...

Practice Note This Practice Note outlines the private rights of action ( PROA) available under the Financial Services and Markets Act 2000 ( FSMA 2000), enabling specified classes of individuals to bring claims against authorised firms where they have incurred loss in certain circumstances. The applicable statutory provisions appear in FSMA 2000, ss 20, 71 and 138D FSMA 2000, and are augmented by the Financial Services and Markets Act 2000 ( Rights of Action) Regulations 2001, SI 2001/2256 (the Rights of Action Regulations)......

Exclusion under the Criminal Justice Act 2003 The admissibility of hearsay in criminal proceedings is regulated by the Criminal Justice Act 2003 ( CJA 2003). The CJA 2003 also permits the reception of hearsay evidence where one or more statutory bases for admitting it are met. The Act also sets out numerous protections, labelled by the Court of Appeal in Horncastle as a ‘crafted code’, intended to secure that hearsay is received only where admitting it is fair. See Practice Note: Admissibility of hearsay evidence in criminal proceedings. Practitioners might first, at the outset, assess whether the hearsay could be ruled out altogether, in appropriate cases, under CJA 2003, s 126 or section 78 of the Police and Criminal Evidence Act 1984 ( PACE 1984), before turning to any further protections that could be employed should it be...

Agricultural tenants’ right to buy An agricultural tenant’s entitlement to purchase was established in Scotland by the Agricultural Holdings ( Scotland) Act 2003 ( AH( S) A 2003). It is a pre-emptive, rather than an absolute, right to buy, because a tenant may exercise it only when the owner proposes to sell the tenanted land concerned. This Practice Note explains the right to buy as it was enacted in AH( S) A 2003. A statutory right to buy under AH( S) A 2003 applies solely to tenants whose agreements are regulated by the Agricultural Holdings ( Scotland) Act 1991 ( AH( S) A 1991), commonly referred to as 1991 Act tenancies (see Practice Note: Agricultural holdings in Scotland—snapshot—1991 Act Tenancies). The practical background and context behind introducing the right to buy is that: 1991 Act tenancies may continue indefinitely, and a 1991 Act tenancy markedly...

This Practice Note outlines the key considerations when dealing with litigants in person ( LIP) in civil proceedings across interim applications, hearings and trial, including instances of non-attendance and remote hearings. It also covers the drafting and service of orders, consent orders, and other trial-stage matters such as applications to adjourn, preparation of trial bundles, handling of evidence, and the use of IT at trial. It offers guidance on interpreting and applying the relevant CPR provisions. It should be read alongside the following: Making an application and service—overview Determining interim applications—overview Trial—overview Judgments and orders—overview Depending on the court in which the case is progressing, additional requirements may arise—see: Court specific guidance. For broader guidance on litigants in person, see: Parties and their...

Typography sits at the heart of a brand’s identity; choosing a distinctive typeface helps a company stand out from competitors. Many organisations adopt or commission a specific typeface for use across print and digital channels to drive consistency and support a recognisable brand. This Practice Note offers legal and practical guidance on fonts and typefaces. It addresses the following areas: Definitions of fonts and typefaces Intellectual property ( IP) rights in fonts and typefaces Sourcing fonts and typefaces—legal considerations, typical licence terms, and common issues when obtaining fonts and typefaces Fonts and typefaces—definitions The difference between the words font and typeface matters from a legal perspective (see the section on ‘ IP protection’ below), though in everyday use they are frequently treated as the same. Typeface A typeface is a collection of letters, numerals and characters designed with a consistent, particular style that...

Loan market and developments Please provide a concise overview of the present condition of the loan markets in your jurisdiction together with any material recent developments. Reflecting on the last three to four years, China’s loan market has experienced a succession of notable shifts and reforms. For the purposes of this Practice Note alone, ‘ PRC’ or ‘ China’ denotes the People’s Republic of China, excluding the Hong Kong Special Administrative Region, Macau Special Administrative Region and Taiwan. The ongoing structural overhaul of both the financial supply side and the overarching regulatory architecture has been advancing in a measured and steady fashion. On 18 May 2023, the China Banking and Insurance Regulatory Commission ( CBIRC), the authority supervising the banking and insurance industries, was superseded by the National Financial Regulatory Administration ( NFRA). NFRA’s mandate has been broadened beyond that of CBIRC, and it now...

This Practice Note outlines the functions of the Secretary of State, operating via the Child Maintenance Service ( CMS), in assessing and recovering child support maintenance, together with the respective scope of both CMS jurisdiction and that of the court. It also reviews particular scenarios where bespoke jurisdictional rules apply, including for consent orders, existing orders, maintenance agreements, and provision from a deceased parent’s estate, as appropriate. See also the Practice Notes: Statutory child support scheme; the Child maintenance and financial provision—spouses and civil partners; and the Maintenance provision for children under Schedule 1 to the Children Act 1989. In relation to the courts’ general power to make orders in financial order proceedings on divorce or dissolution, see Practice Note: Financial proceedings—orders that can be made by the court. Role of the Secretary of State acting through the Child Maintenance Service ( CMS)...

While many charities prefer to manage and handle their own investments, for some this falls outside their capacity, whether due to insufficient expertise, limited time, or a shortage of staff. In such cases, it is sensible to look at employing agents, nominees and/or custodians. Agents Section 11 of the Trustee Act 2000 ( Tr A 2000) specifies—at least for unincorporated charities—the powers available to trustees, supplementing those in their governing document, to delegate particular functions to agents. Accordingly, trustees may, under these powers, pass on defined responsibilities to an agent for the purposes permitted. For Tr A 2000, s 11, the Charity Commission explains that ‘delegate’ means a person undertaking a prescribed duty on behalf of the trustee body as a whole. In this setting, the delegate is the agent appointed to perform a defined task. An agent should not be appointed, or continued in post,...

There are numerous trusteeship positions that can emerge from the way a charitable trust is structured and run, ranging from a traditional all‑purpose trustee to a more confined or specialist capacity, such as a bare trustee or a nominee. Functions of trustees of charitable trusts At its most straightforward, there is one collective of individual trustees and, for a charitable (rather than a private) trust, their number is unrestricted even where the trust assets include land. In that arrangement, the trustees take responsibility for: holding legal title to the trust property making all decisions on banking, property management, insurance and investments recruiting staff and entering into contracts receiving and applying income, and, where authorised to spend it, capital, to meet administrative costs and advance the charity’s purposes preparing the annual return and accounts otherwise meeting charity law...

As many charities grapple with financial strain—from difficulties raising finance, falling donations and weaker investment returns, to cancelled or defaulted major contracts, public funding reductions and mounting pension deficits—some risk slipping into insolvency... Definition of insolvency The Insolvency Act 1986 ( IA 1986) offers no explicit definition. Nevertheless, two tests are commonly relied upon to identify insolvency: where liabilities outweigh assets (“balance sheet” insolvency) where debts cannot be met as they fall due (“cash flow” insolvency) Charities are typically incorporated (often as companies limited by guarantee) or unincorporated, though some are created by Act of Parliament or Royal Charter. Different rules apply to incorporated and unincorporated bodies... For an incorporated charity, it is treated as “unable to pay its debts” if any of the following occur: it does not pay, secure, or settle a creditor’s claim over £750 within three weeks of...

The requirements for reporting and accounting by charities The obligations are detailed in sections 130–176 of the Charities Act 2011 ( CA 2011) ( Part 8: Charity Accounts, Reports and Returns), alongside the Charities ( Accounts and Reports) Regulations 2008, SI 2008/629, and are supplemented by the relevant Statement of Recommended Practice— Accounting and Reporting by Charities ( SORP). For reporting periods (financial years) starting on or after 1 January 2019, the updated second edition of the SORP ( FRS 102), issued in October 2019, is in force. See also the Charity Commission’s guidance: the essentials November 2016 ( CC15d). The obligations vary depending on the size and nature of the charity. To identify which requirements apply, check: whether the charity is also a company its income for the current financial year the value of its assets whether it must be registered with the Charity Commission for England and Wales (the...

NOTE: This Practice Note is retained for historical reference only. It reviews charging orders under the regime operating before 6 April 2016, covering what charging orders are, when seeking one may be appropriate, and the jurisdiction concerned. If you intend to pursue a charging order on or after 6 April 2016, consult Practice Note: Charging orders—what are they and when to use them— CPR 73 and related content. For guidance on the process for obtaining a charging order (both interim and final), see Practice Note: Pre-6 April 2016— Obtaining interim charging orders and final charging orders—the procedure. This Practice Note cites the following legislation: Charging Orders Act 1979 as COA 1979 Tribunals, Courts and Enforcement Act 2007 as TCEA 2007 Partnership Act 1890 as PA 1890 Charging orders—the changes in force as from 6 April 2016 From 6 April 2016, the procedure for applying for interim and final...

This Practice Note explains the nature of chancel repair liability, how it affects a property, the difficulties it presents and the approaches to dealing with the risk of liability, including the option of chancel repair liability insurance. It also looks at chancel repair liability as a former overriding interest and the potential for reform in the future. In short, it sets out what chancel repair liability is and how to address it. What is chancel repair liability? Chancel repair liability is a historic burden which may benefit pre- Reformation churches in England and Wales. It permits parochial church councils to require proprietors of former rectorial land to fund repairs to the chancel (the space around the altar at the east end of the building) of their local church. The duty exists because, historically, the rector of a church was responsible for chancel repairs and met the cost...