Legal Practice Notes

This Practice Note examines the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (the ). The convention establishes a framework for enforcing international civil or commercial judgments. The Note outlines the convention’s background, its status, and the date on which it took effect. It then sets out the convention’s scope ( Articles 1–3), together with the pathways for recognising judgments ( Articles 4–7). It next addresses interpretation and application, including procedure and costs ( Articles 8–15), and concludes with the general clauses on declarations, the convention’s operation in non-unified systems, and its relationship with other international instruments. For the text of this convention and other documents... Definitions applicant—a party applying for recognition or enforcement under the convention Hague Choice of Court Convention— HCCH Convention of 30 June 2005 on Choice of Court...

ARCHIVED: This Practice Note has been archived and is not maintained. It outlines the most notable developments in litigation and case management during 2019. The table below highlights procedural changes, including pilot schemes and amendments to the Civil Procedure Rules (with consultations on proposed revisions). For guidance on the likely implications of the UK leaving the EU for dispute resolution practitioners, see Practice Note: Brexit implementation period—considerations for dispute resolution practitioners [ Archived]. For other key developments for general dispute resolution practitioners, see Practice Note: Key DR cases, reforms and trackers—overview. Litigation—starting a claim The Courts and Tribunals ( Online Procedure) Bill [ HL] 2017–19 Status: As it did not complete its passage through Parliament before the session ended, this Bill will not proceed. For details, see News Analyses: Brexit Bulletin—key Bills fall away on prorogation of Parliament (part 2)— LNB News 09/10/2019 64, and Queen’s Speech may not be...

ARCHIVED: This Practice Note has been archived and is not maintained The Construction case tracker compiles notable 2018 judgments relevant to construction practitioners, arranged in reverse chronological order... See also Construction law case tracker Construction case tracker—2020 [ Archived] Construction case tracker—2019 [ Archived] Construction case tracker—2017 [ Archived] Construction case tracker—2016 [ Archived] Construction case tracker—2015 [ Archived] Public procurement cases are included in the UK public procurement case tracker and the EU public procurement case tracker... Key upcoming appeal matters are listed in the Construction horizon scanner ( Appeal cases)... December 2018 Skymist v Grandlane [2018] EWHC 3504 ( TCC) — 19 December 2018: Adjudication — the TCC rejected a jurisdictional objection to an adjudicator’s decision, said to arise from appointment by an incorrect nominating body, or alternatively that the referring party had approbated and reprobated in relation to the...

This Practice Note examines when, in civil proceedings, a court may infer what an uncalled witness would have said had they attended trial. It reviews decisions where such inferences were accepted and where they were declined, and describes the conditions that must be satisfied before the court will contemplate drawing any conclusion from the ‘missing evidence’. Proving an assertion An assertion pleaded in a statement of case is ordinarily proved by deploying documents disclosed in the proceedings, by oral testimony that endures cross-examination, or by using both routes. For more minor allegations, parties may rely on hearsay. Because it is not tested in cross-examination, hearsay generally attracts limited weight, which is a question for the trial judge. Judges favour documentary proof. They are alert to how memories can fade or be shaped by the litigation process, which is why...

Calculation for an individual (or trust or estate) Proceeds xxxxxx Less: sale costs xxxxx; original cost xxxxx; improvements xxxxx; total costs xxxxxx Gain before reliefs xxxxxx; less: brought‑forward/current year losses xxxxxx Gain before annual exemption xxxxxx; annual exempt amount xxxxx; taxable gain xxxxxx; tax at relevant rate xxxxx Notes to the computation Base cost: purchase price plus improvements, or 31 March 1982 value (including pre‑1982 improvements) if held then, even if lower; legal/agents’ fees are part of acquisition/disposal costs; only improvements still present at sale are allowable. Rates: 10% with business asset disposal or investors’ relief; otherwise 10%, 18%, 20%, 24% or 28%. Residential property or carried interest can attract higher rates. Offset losses and the annual exemption first against higher‑rated gains. Non‑relieved gains get 10% (18% for...

This Practice Note explains the VAT treatment of non-residential service charges. General position Service charges are ordinarily payable to the landlord under a lease or licence, much like rent, and therefore reflect the same VAT treatment as the rent. This is because there is no distinct supply—the rent and service charge together constitute payment for a letting of serviced premises. Certain charges may, however, need alternative treatment: there may be a separate supply, typically where the tenant pays solely according to its own consumption—metered utility charges are an example the amount may be a disbursement, where the landlord settles and recharges a cost that is legally the tenant’s responsibility—business rates are an example, if the tenant is the rateable person These and other specific categories of charge are considered in more detail below. Exceptions to the general position The position differs: if a party other than the landlord, such as a...

Article 12 of the Organisation for Economic Co- Operation and Development ( OECD)’s model tax convention ( MTC) Article 12 addresses how royalties arising in cross-border situations are taxed. It sets out how taxing rights are apportioned between two jurisdictions: the state where the recipient of the payment is resident (the recipient state), and the state where the payer is resident (the source state) This Practice Note examines: what constitutes royalties under a double tax treaty or convention ( DTT) the model convention’s method for taxing royalties targeted anti–treaty shopping measures how individual DTTs deviate from the model approach, and the practical scenarios in which the royalties article must be considered The EU Interest and Royalties Directive, which eliminated withholding tax on royalty payments between associated companies in different EU Member States and was implemented in UK law, was...

It is market practice for a tax covenant, sometimes referred to as a tax deed, to be included within the transaction documents for a sale of the entire share capital of a company (the target), where the target is: a private company incorporated in the UK; or a private company incorporated outside the UK with a UK connection (ie, where the buyer is UK tax resident or the share purchase agreement ( SPA) is to be governed by English law) This Practice Note sets out: what a tax covenant is what a tax covenant does—broadly, it allocates, by reference to a specified date, responsibility between seller and buyer for the tax liabilities of a target company or group; and how sums paid under a tax covenant are treated for UK tax purposes What is a tax...

ARCHIVED: This Practice Note is archived and no longer maintained. It is provided for background purposes only. On 22 August 2023, SIAC opened a public consultation on the Draft 7th Edition of the SIAC Rules; the draft 7th Edition is available here. This Practice Note reviews the provisions on awards and costs under the Arbitration Rules of the Singapore International Arbitration Centre ( SIAC) (6th edition) 2016 (2016 SIAC Rules). The 2016 SIAC Rules govern arbitrations begun on or after 1 August 2016, unless the parties agree otherwise. For guidance on the 2013 SIAC Rules, see: SIAC arbitration—overview. Definition of the award The SIAC Rules specify that an award covers the following (2016 SIAC Rules, r 1.3): partial award interim award final award emergency arbitrator’s award Unless the parties agree to the contrary, the tribunal may issue separate awards on distinct issues at...

What are provisional sums? There is no exact, universally accepted definition of a provisional sum, but it is commonly taken to mean an amount included within a bill of quantities, or a contract sum analysis, to make allowance for particular elements of work that cannot be clearly specified, described, or priced when the employer issues the tender documents. This may arise because the work might prove unnecessary, or because its extent or scope is not yet known—for instance, where the contract works involve excavation or below‑ground operations that cannot be reliably investigated until the project is underway. It is termed a ‘provisional’ sum as neither party is bound by the allowance—the eventual cost may come in above or below the stated provisional amount......

The general rule and proportionate costs orders— CPR provisions The usual starting point is that the unsuccessful party is ordered to meet the successful party’s costs. Yet, in particular circumstances the court may deviate and make a proportionate costs order, directing that only a percentage of another party’s costs be paid. The court’s jurisdiction to do this is acknowledged in CPR 44.2(6)(a), which permits an order requiring payment of a proportion of another party’s costs. In terms, the rule provides that the court may order a party to pay a proportion of another party’s costs. When applying this, the court must also take into account the earlier parts of the rule. The earlier provisions include: CPR 44.2(4): the court must have regard to all the circumstances; CPR 44.2(5): the conduct of the parties is taken into account. For further guidance, see Practice Notes: Costs...

Liability for negligent misstatement can, in various ways, be avoided and/or curtailed. For an explanation of how to found such a claim, see Practice Note: Negligent misstatement—founding a claim. For general guidance on clauses that seek to limit or exclude liability, consult the following Practice Notes: Misrepresentations—excluding and limiting liability for them Contractual estoppel Contractual estoppel—illustrative cases Disclaimers of liability for negligent misstatement A disclaimer will be effective where the statement is coupled with wording that plainly signals an intention to disclaim. In Hedley Byrne v Heller, the defendants said their advice was provided 'without responsibility', which the court accepted as excluding what would otherwise have been negligence liability. The wording must be explicit and unequivocal; the court will not infer a disclaimer (see Box v Midland Bank [1981] 1 Lloyd’s Rep 434, not reported by Lexis...

This Practice Note sets out who the JCT are and gives a snapshot of the most widely used standard form building contracts they issue. Reference copies of the contracts and their associated guides are available in the relevant JCT subtopics (ie 2024, 2016, 2011, 2005 and 1998) under the ‘ Forms’ tab, and also in the following documents: 2024—reference copies 2016—reference copies 2011—reference copies 2005—reference copies 1998—reference copies Who are the JCT? JCT stands for Joint Contracts Tribunal. Founded in 1931, it now comprises the following member bodies: the Royal Institute of British Architects the Contractors Legal Group Ltd the Royal Institution of Chartered Surveyors the Local Government Association the Scottish Building Contract Committee Ltd Build UK Group Ltd the British Property Federation Each of these organisations nominates a director to sit on the JCT...

Executive directors’ shareholding requirements Ensuring executive directors’ remuneration tracks a company’s long-term strategy and aligns with shareholders’ interests continues to be a prominent and heavily debated issue for UK listed companies across the market. Although no law compels executive directors to hold company shares, imposing a minimum holding, reinforced by a post-employment shareholding policy, has now become the norm across listed companies and is regarded as best practice. The framework for a UK listed company’s shareholding expectations is outlined in the FRC’s Corporate Governance Code (the Code) and in supporting institutional investor guidelines. The primary institutional investor guidelines for these purposes are the Investment Association’s ( IA) Principles of Remuneration—usually issued annually ahead of each AGM season (the IA Principles). Neither the Code nor the IA Principles are legally binding, nor do they have the force of law, but they strongly influence...

If a national court or tribunal in an EU Member State considers the meaning of a point of EU law unclear for a live dispute, it may—and in certain instances must—seek a preliminary ruling from the Court of Justice or the General Court. This Practice Note sets out the characteristics of the preliminary ruling mechanism together with: the scope and aims of the mechanism the situations in which a court or tribunal may, or is obliged to, submit a preliminary reference the proper moment to lodge the request for a preliminary ruling what is meant by ‘national court’ and ‘national tribunal’ for these purposes the method for making a request for a preliminary ruling, and the phases of a preliminary reference Background reading and statistics on preliminary references can be found in the annual reports of the Court of...

Standard building contracts typically set out which liabilities sit with the contractor or the employer, and who must insure them. See, for instance, Practice Notes: JCT contracts—insurance, NEC contracts—insurance, FIDIC contracts (pre-2017 editions)—insurance, and FIDIC contracts 2017—insurance. Where a building contract is made orally, or the written terms omit such matters, the common law position applies. They allocate risk and specify the party responsible for insurance. What are the contractor's potential liabilities? liability in tort to third parties for injury, death or damage to property arising from the contractor’s negligence (see Practice Note: Negligence in construction); liability to the employer for loss or damage to the works caused by the contractor’s own negligence, or for breach of contract (see: Contract law for construction lawyers—overview). The contractor is not responsible to the employer where the works suffer damage from any cause other than the...

Most private competition claims in England proceed on a tortious footing, commonly pleading breach of statutory duty, and the discussion below centres on tort-based claims. Nonetheless, it should be acknowledged at the outset that English law does, in certain circumstances, allow damages linked to anti-competitive behaviour to be recovered on a non-tortious basis. For example, a contract may stipulate payment of a liquidated amount if a counterparty is found to have committed a relevant infringement of competition law. Indeed, some companies now incorporate such terms within their standard supplier agreements. It is also, of course, possible to seek remedies other than compensatory damages. Brief mention is made below of exemplary damages, which are awarded not to make the claimant whole but to punish the defendant. Likewise, restitutionary damages aim to remove part or all of the benefits obtained by the...

In broad terms, the doctrine of overreaching permits purchasers (including tenants and mortgagees) acting in good faith for money or money’s worth to rely exclusively on the legal title. For registered land, this refers to the entries on the register of title, which records ownership of the legal estate and does not concern itself with equitable interests. A buyer taking a legal estate in land from trustees will not be affected by any trusts on which the land is held if the purchase price is paid to all the trustees (there must be at least two) or to a trust corporation. Payment in that form results in the beneficiaries’ interests being ‘overreached’. This is commonly called the 'two trustee' rule. Overreaching also occurs on sales: under the powers of the Settled Land Act 1925 by a mortgagee (see Overreaching by a mortgagee) or personal...

Background—the creation of the powers Chapter 3B, Part 5 of the Proceeds of Crime Act 2002 ( POCA 2002), titled ‘ Forfeiture of money held in bank and building society accounts’, sets out the mechanism for detaining and forfeiting money in bank accounts. In brief, it enables applications for: account freezing orders ( AFOs) over funds in bank accounts requests to vary or discharge AFOs a streamlined process to issue a forfeiture notice account forfeiture orders the involvement of victims and other owners appeals concerning forfeiture decisions applications for compensation These applications are heard in the magistrates’ court. They are self‑contained proceedings, separate and independent from any related criminal case. The process is governed by the Magistrates’ Courts ( Freezing and Forfeiture of Money in Bank and Building Society Accounts) Rules 2017, SI 2017/1297. Civil recovery and cash forfeiture Although courts have handled cash forfeiture applications since the Criminal Justice (...

This Practice Note This Practice Note explains the rules used to assess fixed costs in money claims when judgment is obtained or the defence is struck out. It outlines the fixed costs tables for such matters and considers what amounts to a specified sum and the position where the defendant satisfies the claim. Note that this Practice Note addresses the current regime for money claims where judgment is entered or the defence is struck out. From 1 October 2023, the earlier provisions and relevant Tables concerning fixed costs for money claims (entry of judgment) were renumbered within CPR 45 or relocated to CPR PD 45. Nonetheless, the substantive provisions and Tables themselves have not been altered in content, save for a minor revision to the former Table (pre-1 October 2023), which now appears as CPR PD 45, Table 3 (fixed costs on entry of...