Legal Practice Notes

This Practice Note explores how employment tribunals deploy declarations and recommendations as remedies in a prohibited conduct (eg discrimination) claim. Declaration of rights An employment tribunal may make a declaration identifying the rights of the complainant and the respondent in connection with the matters to which the proceedings relate, where it concludes there has been a contravention of: Part 5 (work) (see Practice Note: Employment events which give rise to discrimination, harassment and victimisation claims) section 108 (prohibited conduct concerning relationships that have ended—see Practice Note: Employment events which give rise to discrimination, harassment and victimisation claims— After employment) section 111 (instructing, causing or inducing contraventions—see Practice Note: Liability of employers and employees under the Equality Act 2010— Instructing, causing or inducing contraventions) section 112 (aiding contraventions—see Practice Note: Liability of employers and employees under the Equality Act 2010— Aiding...

Types of application The applications most frequently brought under the Cross- Border Insolvency Regulations 2006 ( CBIR 2006), SI 2006/1030 include: recognition applications (art 15) applications for interim relief (art 19) applications for relief (art 21) applications to open English insolvency proceedings (art 11) applications to take part in English insolvency proceedings (art 12) applications seeking access to the English courts (art 9) applications to unwind antecedent transactions (art 23) The Civil Procedure Rules ( CPR) govern all cases pursued under the CBIR 2006, SI 2006/1030, and such matters are treated as multi-track proceedings (see CBIR 2006, SI 2006/1030, Sch 2, para 30). If any inconsistency or conflict arises between the CPR and the CBIR 2006, SI 2006/1030, the latter will prevail and take priority (see Dalnyaya Step LLC (in liquidation); Cherkasov v Nogotkov ( Official Receiver of...

Across numerous jurisdictions, including the United Kingdom, borrowers may, in certain situations, be required to deduct a portion of interest owed to a lender and pay the deducted sum to the tax authorities. This Practice Note outlines when UK withholding tax applies to lending and highlights the principal exemptions. For fuller detail on the handling of withholding tax in facility agreements, see Practice Note: Tax considerations on a loan agreement—the tax gross up clause and Reviewing a loan with a view to alleviating UK withholding tax risk—checklist. What is withholding tax? Withholding tax is a means of collecting tax at source from the person making the payment, rather than from the recipient. It offers an efficient collection mechanism for authorities such as His Majesty's Revenue and Customs ( HMRC), as the payer carries the administrative burden of: deducting the correct amount of income tax from the...

Duress by threats Duress by threats furnishes a full defence to any criminal charge save for murder, attempted murder and, potentially, treason. It operates where the accused commits the offence with intention yet is driven to act by another’s threat, or reasonably believes a threat has been issued, that, unless they commit the offence charged, they or a third person will suffer harm. The evidential basis for duress must be put forward by the defendant; once that is done, the prosecution bears the burden of disproving the claim beyond reasonable doubt. See Practice Note: Burden and standard of proof in criminal proceedings. The assessment entails both subjective and objective tests, to be determined by the jury following directions provided by the judge. The defence will succeed only if, when applying both limbs, the jury are not satisfied beyond reasonable doubt that the...

The doctrine of separability This Practice Note examines the 'doctrine of separability' of arbitration agreements in international arbitration. The 'doctrine of separability' regards an agreement to arbitrate contained within a contract as an autonomous agreement, distinct from the main contract. The doctrine preserves the validity and enforceability of arbitration as the parties' chosen mechanism for resolving disputes, even if the principal contract is invalid and unenforceable. Consequently, the arbitration agreement may remain valid and enforceable, notwithstanding that the broader agreement in which it is set is itself held to be invalid and unenforceable. In effect, the parties are treated as having made two separate agreements, and the agreement to arbitrate is separable......

Many of the standard conditions precedent for a typical syndicated loan facility will likewise apply to a project finance transaction. For information on those conditions precedent, see Practice Note: Conditions precedent. This Practice Note addresses further conditions precedent that may arise in a project finance transaction. Purpose and timing of conditions precedent in project finance Conditions precedent are included in finance documents for the benefit of the lenders. They give lenders grounds to decline lending if they are not sufficiently comfortable with the matters on which their credit appraisal is based. They also verify core information about: the borrower and any other obligors (eg their capacity to enter into the transaction documents and their financial standing), and the transaction (eg adequacy of security and receipt of necessary licences and approvals) In a project finance transaction, lenders also seek specific comfort on the...

This Practice Note examines what makes someone an office-holder, whether they may simultaneously qualify as employees or workers, the particular equality protections available to them, and the questions that arise in relation to police, religious ministers and priests, judges and directors. Characteristics of office-holders An office-holder is typically an individual appointed to a role, often by a company or another organisation, but who may not have any contract governing that role. Examples of appointments that can give rise to office-holder status include: statutory appointments, such as registered company directors or secretaries, members of the boards of statutory bodies, or Crown appointments appointments under an organisation’s internal constitution, such as club treasurers or trade union secretaries appointments under a trust deed, e.g. trustees ecclesiastical appointments, e.g. church ministers An office-holder’s rights and duties are determined by the nature of the office, rather than by any...

This Practice Note examines non-exclusive jurisdiction agreements (also referred to as choice of court agreements or forum selection clauses). It outlines what a non-exclusive jurisdiction clause is and the legal effect it has, and also addresses the enforcement of such clauses. For a broad introduction to jurisdiction agreements, see Practice Note: Jurisdiction agreements—introduction. For guidance on other forms of jurisdiction agreement, see: Determining court jurisdiction—overview. What is a non-exclusive jurisdiction clause? A non-exclusive jurisdiction clause may stipulate that the courts of a specified jurisdiction are competent to hear disputes between the parties, or it may omit any express designation of jurisdiction. Unlike an exclusive jurisdiction clause, it is without prejudice to the entitlement of any party to begin proceedings in a different forum from that identified in the clause. Where parties agree a jurisdiction clause that does not nominate any particular...

This Practice Note examines when obligations in a property contract fuse on completion and what remedies might still be available once completion has taken place. For remedies relating to property contracts in general, see the following Practice Notes: Specific performance of property agreements Notice to complete Termination for breach of property contract Repudiation of property sale contracts Return or forfeiture of a deposit Misrepresentation, misstatement and non-disclosure in property matters Rectification—mutual mistake, and Rectification—unilateral mistake The general rule At common law, the same subject matter cannot be governed by two concurrent agreements. Where a contract is completed by deed, any contractual provisions that overlap with the deed are absorbed into the executed instrument and the contractual terms are extinguished. For instance, a sale contract for land merges into the transfer or conveyance, and an agreement for lease merges into the...

The difference between bilateral and syndicated loans A bilateral loan features a borrower and a single lender, with, on occasion, other companies within the borrower’s group acting as guarantors and/or providers of security to support the borrowing. Where one lender is unwilling or unable to supply the whole sum the borrower requires, the borrower may turn to two or more lenders to cover its funding needs in order to meet its financing objectives. In a syndicated arrangement, multiple lenders agree to provide finance to a borrower on harmonised terms, all set out in a single facility agreement executed by every party to the transaction. Types of syndication There are three main types of syndicated loans: underwritten deals, in which the arrangers promise to fund the entire commitment and subsequently seek to syndicate the loan to other lenders. If the loan is not fully...

Once hailed as a demonstration of the English knack for bending the most rarefied ideas to commercial ends, floating charges are now widespread and, in practice, almost indispensable to finance deals. This Practice Note flags the key distinctions between the laws of Scotland and England concerning floating charges, looking in particular at their make-up, the rules on registration, and the mechanisms for enforcement in each jurisdiction. It concentrates on the status of a ‘qualifying floating charge’ as that expression is defined in the Insolvency Act 1986 ( IA 1986), and how the concept operates across both Scotland and England. The floating charge Although fixed securities give a lender priority ahead of floating charge holders and unsecured creditors, they are confined to the identified asset over which they are granted and limit the borrower’s freedom to deal with that asset without the fixed security holder’s...

An annuity is a periodic sum paid out of personal estate. See Savery v Dyer (1752) Amb 139 (not reported by Lexis Nexis®). It is personalty ( Parsons v Parsons). An annuity is a legacy, being a bequest of whatever capital is needed to produce the annuity amount. They can be useful where a drip-feed approach is desired. In essence, they are legacies settled by instalments over a beneficiary’s lifetime. The Will ought to specify whether: executors may buy the annuity using estate capital; a sum from income is reserved to finance the purchase; both capital and income are earmarked to fund the purchase; the annuity is acquired during the executors’ lifetimes (if funds permit), with any deferred annuity vesting in trustees on death; Different routes carry different tax consequences, for capital and income. Annuities may arise: inter vivos by...

When a company has been struck off the register, it can, in some cases, be reinstated by applying to the court for an order under the Companies Act 2006. This Practice Note outlines the process for restoring a company to the register through a court order... Why restore a company to the register? Where a company has been removed from the register, an interested party may apply to the court to have it restored. Common motivations for restoration include: enabling a claim to be pursued against the company addressing assets the company owned at dissolution that passed as bona vacantia situations where the registrar struck the company off while it was still trading If the registrar initiated the striking-off, the applicant should assess whether the simpler, quicker administrative restoration route is available as an alternative to the court process......

This Practice Note reviews the deadline for challenging an employment tribunal judgment in the Employment Appeal Tribunal ( EAT). It addresses the 42-day period for lodging appeals, the point from which that period begins, receipt, and the absence of deemed service rule for documents dispatched by post. It further considers requests for extra time to commence an appeal under the extension provisions in Rule 37(1) and Rule 37(5) of the EAT Rules 1993 ( EAT Rules), and outlines the principles and factors for granting additional time, as reflected in the relevant case law. Calculating the time limit for presenting a Notice of Appeal An appeal against an order, direction, or decision must be filed within 42 days of the date of that order, direction, or decision. The EAT will regard an employment tribunal’s refusal to make an order or decision as itself amounting to an order,...

This Practice Note explains the tax treatment of carried-forward income losses for corporation tax purposes. The framework for using carried-forward income losses was overhauled by Finance ( No 2) Act 2017 ( F( No 2) A 2017). The changes introduced two distinct regimes, under which, in broad terms: For losses arising on or after 1 April 2017 (post-1 April 2017 losses), a company may, in general, carry them forward and set them off against its total profits in later accounting periods. Moreover, carried-forward post-1 April 2017 losses can be surrendered via group relief. This flexibility is commonly described as the ‘loss relaxation’. For losses incurred before 1 April 2017 (pre-1 April 2017 losses), they can, as a rule, only be carried forward to be set off against profits of the same category. For instance, where a trading loss arose before 1 April 2017 and was not...

This Practice Note examines the closed material procedure ( CMP) under CPR 82, by which the state may present material sensitive to national security to a judge without revealing it to opposing parties. It further explains how to apply to withhold such national security sensitive material pursuant to CPR 82.13. The closed material procedure ( CMP)—evolution and rationale The state has long protected matters touching national security by asserting public interest immunity ( PII), shielding related information and documents—see Practice Note: Public interest immunity. Where a PII claim succeeded, national security-sensitive material remained concealed, as the documents were withheld from everyone and excluded entirely from the issues before the court, having no influence on the dispute. Yet the state could not rely on them either, because the PII certificate kept them out of the case. If, on the other hand, a PII claim failed, the...

STOP PRESS: ECCTA 2023 brings in identity verification obligations for everyone submitting filings with Companies House. These rules are expected to become mandatory in November 2026. See the Changes under ECCTA 2023 section below for additional detail and timing. STOP PRESS: On 16 March 2026, Companies House announced that on Friday 13 March it became aware of a security issue whereby a signed-in Web Filing user could, after carrying out a particular sequence of steps within the portal, potentially view and amend certain aspects of another company’s information without that company’s consent, including specific fields and entries. For the avoidance of doubt, Companies House has confirmed that no already-filed documents, including accounts or confirmation statements, could have been changed. Nevertheless, there is a risk that some personal data might have been accessed and that unauthorised filings may have been submitted. Although information is currently limited, this could, for...

Practice Note This Practice Note outlines the criminal offences of tattooing individuals under 18 under section 1 of the Tattooing of Minors Act 1969, and the prohibition on under-18s using sunbeds under section 2 of the Sunbeds ( Regulation) Act 2010 ( S( R) A 2010). It also summarises the available defences and the potential sentences for these offences... Tattooing of minors Tattooing anyone below 18 is an offence unless carried out for medical purposes by a suitably qualified medical practitioner, or by someone acting under that practitioner’s direction. A defence exists where the accused can demonstrate that, at the time of the procedure, they had reasonable cause to believe—and genuinely did believe—the person was 18 or over. A tattoo is the insertion into the skin of colouring material intended to produce a permanent mark. On summary conviction, an offender is liable to a fine up to level...

The law relating to wrongful conception, pregnancy and birth can be broken down into the following areas: Unintended conception after a negligently performed sterilisation (male or female), resulting in the birth of a healthy child Unintended conception after a negligently performed sterilisation (male or female), resulting in the birth of a disabled child Unintended conception arising from negligent contraceptive or medical advice or treatment Wrongful birth where the claimant mother would have ended the pregnancy had she been informed that the child was, or was likely to be, disabled A claim by a disabled child (as opposed to a claim by the mother for her own injuries) Claims are most often brought by the person who carried the pregnancy, rather than by any child born from it. In many cases of negligent female sterilisation, the issue is tubal occlusion where a Filshie clip has not been correctly applied to the...

What does this Practice Note cover? This Practice Note offers an overview of the clearing of over-the-counter ( OTC) derivative contracts under UK EMIR. It covers: what clearing OTC derivative contracts entails the reasons for clearing OTC derivatives the types of OTC derivative contracts subject to the mandatory clearing obligation who is obliged to clear who is exempt from the clearing duty how clearing works under the principal and agency models the documentation required for a clearing relationship the concept and mechanics of indirect clearing What is OTC derivative clearing? When an OTC derivative trade between two counterparties is centrally cleared, a central counterparty ( CCP) positions itself between the original parties to the transaction. Once the parties have agreed the OTC trade, the CCP becomes the buyer to every seller and the seller to every buyer....