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Introduction to statutory interpretation The aim of statutory interpretation is to determine the legal meaning of a statute, that is, the sense that expresses the legislator’s intention. The clearest guide to that intention is the statutory wording itself, read in its context and with its overall purpose in mind, and its broader legislative setting. Courts should seek to fulfil the purpose of legislation by construing its language, so far as they can, in the manner that most effectively serves that purpose. Put differently, the courts’ default method is purposive, and every enactment is to be construed with that end in view. There is a starting presumption that the grammatical and ordinary sense of an enactment reflects the meaning intended by the legislator. Where an enactment reasonably bears only a single meaning, and no other interpretative tools or
This Practice Note addresses identifying a fiduciary, fiduciary duties and obligations, the no conflict rule, the no profit rule, a fiduciary's duty of confidence, and the remedies available for breach of fiduciary duty. Who is a fiduciary? There is no definitive catalogue of relationships that give rise to fiduciary obligations at common law in every situation universally. Certain relationships are inherently fiduciary, eg trustee and beneficiary, solicitor and client, principal and agent, business partner and co-partners, together with mortgagor and mortgagee. The obligations of some fiduciaries have been set out in statute; for instance, trustees owe a statutory duty of skill and care under section 1 of the Trustee Act 2000 (TrA 2000), and directors' relationships with their companies are addressed in the Companies Act 2006 too. For guidance on directors' fiduciary duties, see Practice Note: of directors for further detailed
Definition of ADR Alternative dispute resolution (ADR) is defined in the CPR Glossary as a collective label for methods of settling disputes other than through the usual trial process. Some courts adopt the term ‘negotiated dispute resolution’ (NDR) to describe resolution by alternative means; for ease, this Practice Note uses ADR. For guidance on how ADR is addressed in the various court guides, see Practice Note: ADR and NDR in the court guides. In essence, ADR is a means of resolving a dispute outside the court system. It typically involves a neutral third party who either helps the parties reach a negotiated outcome, or issues a determination of the dispute that is legally binding. A binding result can follow where the agreement to refer the dispute to ADR so provides. There are multiple forms of ADR processes. For an outline of the different types and their
In brief The British constitution is uncodified, meaning it does not spring from a single constitutional document or code. It draws on a wide range of written and unwritten sources. Alongside the principal written sources of law in England and Wales—legislation (which has also introduced international and human rights principles into our constitution) and the common law—the constitution also rests on two further unwritten bases within this system: the prerogative, and non-legal constitutional conventions. In addition, on one view the basic or prevailing principle of our constitution, Parliamentary sovereignty, is ultimately grounded in political fact rather than in law. Legislation Legislation is the foremost source of constitutional law. Acts of Parliament may set out detailed constitutional rules, or even pass authority to create them to ministers or to others. Under the doctrine of Parliamentary sovereignty, legislation is traditionally regarded as taking precedence over any other form or kind of
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1. What is the applicable legislation? South Africa does not have a single, overarching statutory scheme governing foreign direct investment ( FDI). Below is a non-exhaustive overview of key legislation relevant to FDI in South Africa: Protection of Investment Act 22 of 2015, as amended Competition Act 89 of 1998 ( Competition Act 1998) Companies Act 71 of 2008 ( Companies Act) Companies Amendment Act 16 of 2024 and the Companies Second Amendment Act 17 of 2024 ( Companies Amendment Acts 2024) Companies Regulations, 2011 issued under the Companies Act 2008 ( Companies Regulations 2011), and GNR.1111 of 1 December 1961: Regulations made under the Currency and Exchanges Act 9 of 1933 and, in relation to each of the above, as amended 2. Which government or other body (or bodies) reviews foreign...
Introduction The adoption of sewers is the mechanism by which sewers are vested in the sewerage undertaker or an appointed sewerage company, after which the undertaker meets the cost of maintenance. A sewer adoption agreement (described in this Practice Note as a ‘section 104 agreement’) is the contract that developers or, in Ofwat’s terminology, ‘self-lay providers’ ( SLPs) enter into with the undertaker when the developer wishes the undertaker to assume responsibility for sewerage infrastructure they have built so that it becomes a public sewer. A sewer adoption agreement can likewise be used where a section 160 Water Industry Act 1991 ( WIA 1991) arrangement exists under which the undertaker agrees to carry out works connected with constructing sewerage infrastructure at the relevant person’s expense. The statutory basis for undertakers to enter such agreements is WIA 1991, s 104. The approach to adopting new...
Service after the issue of a financial application This Practice Note sets out how service should be handled once a financial application engaging the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, has been issued, covering applications for financial orders and financial remedy claims. It reviews the service provisions within FPR 2010, highlights best practice for effecting service, and explains the service of proceedings—whether undertaken by the court or by the applicant—on the respondent and on third parties. It addresses the service requirements for interim financial applications, proceedings under the Trusts of Land and Appointment of Trustees Act 1996 ( TOLATA 1996), and claims brought under the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975)......
Intercreditor agreements Intercreditor agreements are intricate, highly detailed frameworks between two or more creditor groups, requiring careful, case-specific scrutiny. That scrutiny spans the extent of rights and safeguards afforded to each creditor class in each case, and whether the structure, taken as a whole, functions economically within the context of the relevant lending arrangements. For information on intercreditor arrangements in a general context, see Practice Notes: Introductory guide to Intercreditor Agreements Intercreditor payment priorities and requisite majorities Basic introduction to super senior, senior, mezzanine and junior debt Intercreditor agreements are regularly encountered in real estate finance because many lenders are only willing to lend on a senior basis up to a specified loan to value, which varies from deal to deal by reference to the nature of the underlying real estate, the ultimate risk profile of the transaction, and prevailing market...
Entitlements arising under insurance policies constitute contractual rights. A lender may obtain security over an insurance policy through an assignment granted as security, effected by way of security. Additional protections can also be deployed in relation to insurance, including noting the lender’s interest on the policy or arranging co-insurance status for the lender. These alternatives take varied forms and deliver distinct advantages to the lender. This Practice Note concentrates on the issues that arise when taking security over rights under insurance policies. For general guidance on securing contractual rights, refer also to Practice Note: Taking security over contractual rights in general. Nature of insurance policies Rights arising under insurance policies are intangible assets rather than physical property. They sit within the class of contractual rights. Such a right is a chose in action (or thing in action), that is to say, a claim...
This Practice Note explains the shift in workplace accident claims brought about by section 69 of the Enterprise and Regulatory Reform Act 2013 ( ERRA 2013). For incidents at work occurring on or after 1 October 2013, a breach of statutory duty no longer gives rise to civil liability unless the particular regulation expressly allows it, notwithstanding that criminal penalties for breach still apply. As a result, claimant practitioners must advance their cases in negligence, treating breaches of health and safety regulations as evidence supporting the pleaded negligence. This Practice Note is intended to highlight the core change to workplace accident litigation introduced by ERRA 2013, s 69... The provision Taking effect on 1 October 2013, ERRA 2013, s 69 recast section 47 of the Health and Safety at Work etc Act 1974 ( HSWA 1974). Before this amendment, in claims arising from...
This Practice Note provides a primer on arbitration in Scotland under the Arbitration ( Scotland) Act 2010 ( A( S) A 2010) and associated topics. It concentrates on how A( S) A 2010 diverges from the Arbitration Act 1996 ( AA 1996) as it applies in England, Wales and, separately, Northern Ireland (using ‘ England’ and ‘ English’ as convenient shorthand). For an overview of AA 1996, see Practice Note: A guide to the Arbitration Act 1996 ( AA 1996). Background to A( S) A 2010 Scotland’s legal system (‘ Scots law’) evolved independently from that of England and Wales. Its foundations lie in customary law, canon (church) law and Roman law, brought into Scotland in the late medieval era when Scottish jurists returned from study in the Netherlands and other continental European jurisdictions. After the 1707 union of the Scottish and English...
The offence of failing to identify driver Registered keepers and motorists of vehicles are, under certain circumstances, required to provide information as to the driver of a vehicle, if so required. Section 172(2) of the Road Traffic Act 1988 ( RTA 1988) creates an obligation on the registered keeper, and on any other person when asked, to give the name of the driver or supply information as to the identity of the driver, or provide information within their power to give that may lead to identifying the driver where a road traffic offence has allegedly been committed. It is a summary-only offence which is dealt with only in the magistrates’ court......
This Practice Note sets out the process for applications seeking the release of cash held under the Proceeds of Crime Act 2002 ( POCA 2002). It addresses applications by the person from whom the money was taken, applications by third-party owners, the handling of interest accruing on seized funds, compensation for wrongful detention of money and the costs principles that apply in magistrates’ court proceedings. For guidance on how cash is detained, see Practice Note: Cash seizure and detention. Application by the person from whom the cash was seized When cash has been seized and detained under sections 294 and 295 of the Proceeds of Crime Act 2002 ( POCA 2002), an officer (ie an immigration officer, HMRC officer, officer of the Serious Fraud Office ( SFO), police officer or accredited financial investigator) may, once the magistrates’ court is notified, authorise release of all or part of the...
This Practice Note outlines the steps a private limited company must lawfully take to convert to an unlimited company (a re-registration from private limited to unlimited) under Part 7 of the Companies Act 2006 ( CA 2006). What is an unlimited company? An unlimited company is a body where members' liability to meet the company's obligations on a winding-up is not capped at any amount. An unlimited company cannot be a public company. It may, or may not, have a share capital (for example, a private company limited by guarantee can be re-registered as an unlimited private company without a share capital). For more information, see the Practice Note: Unlimited companies. Why re-register as an unlimited company? Members of unlimited entities forgo what is typically regarded as a principal benefit of incorporation, when compared with operating as a sole trader or a partnership: limited...
This Practice Note outlines the nature of costs-only proceedings and the steps to follow in bringing them. Through the costs-only route, a claimant may issue a Part 8 claim so that the court can make a costs order, enabling the parties thereafter to commence detailed assessment. The regime for costs-only claims appears in Section IV of CPR 46, specifically CPR 46.14, which sets out prerequisites that must be satisfied before starting such a claim. These include: settlement of all matters in dispute save for pre-action costs; and no proceedings having been commenced. This route cannot be used where costs are payable under a contract ( CPR 44.5). Purpose of costs only Part 8 proceedings The costs-only ( Part 8) procedure is intended to provide a straightforward and convenient way to resolve a costs dispute brought with the consent of both parties....
This Practice Note explains what proprietary estoppel is, how to advance a plea of proprietary estoppel, and gives examples of when, in practice, you may wish to rely on it. It examines proprietary estoppel from a general perspective. For sector-specific guidance on proprietary estoppel for property law practitioners, see Practice Note: for property disputes lawyers. —what is it? Unlike other species of estoppel (see Practice Note: Estoppel—what, when and how to plead), which will not usually found a cause of action, proprietary estoppel can. It is commonly deployed where a party ( B) seeks to assert a proprietary right in land owned by another ( A), where B has been led to believe—by promise, words or conduct and/or by A’s acquiescence—that B has, or can expect to acquire, an interest in that land. The decisions in Ramsden v Dyson and Willmott v Barber offer a...
Adjustments for vulnerable or disabled individuals in probate Probate practitioners should, in a range of situations, make reasonable changes for vulnerable or disabled people engaged in administering an estate—whether acting as personal representatives or as beneficiaries—particularly where there are visual, communication or mobility difficulties. Adaptations may involve: supplying written guidance in larger type; guaranteeing accessible meeting space and appropriate parking; visiting clients at home; or arranging an appropriate interpreter. If there is a Will, the testator may themselves have had a disability, which can be indicated by the style of attestation clause employed, eg a clause tailored for a blind or visually impaired testator. Frequently, concerns only emerge after death, when relatives or beneficiaries of the deceased challenge the Will’s validity. Anyone handling the probate should confirm that the Will was duly executed and that, in the circumstances, the correct form of attestation was used. Even with a...
What is a prime cost contract? Put simply, where a deal is let on a ‘prime cost’ basis, the contractor recovers the expenditure it incurs in delivering the works — such as labour and materials (including those supplied by sub‑contractors) — plus a management fee on top to cover overheads and profit. This differs from the usual lump sum arrangement, under which the employer and contractor fix the total contract price payable to the contractor at the outset (subject to any clauses permitting adjustments as the works proceed) and the contractor bears the risk of any rise in the cost of the works. Management contracting is a common setting for prime costs in practice. The management contractor is remunerated with a fee for its services plus the prime costs it incurs in performing its functions. Those costs include amounts paid to the works...
Construction contract pricing structures This Practice Note contrasts the pricing models most often used on construction projects, considering lump sum, remeasurement, prime cost and target cost contracts. Lump sum Also referred to as: Fixed price In brief: the contract sum is settled before any works begin. Features At the outset, employer and contractor agree the total amount payable for the project, prior to commencement. The price is not remeasured as the works proceed, so adequate tender information is essential for accurate pricing. Where the contractor is not responsible for design, pricing is typically based on drawings and: a bill of quantities prepared by a quantity surveyor in line with a published standard method of measurement, listing the work items, labour and materials needed to complete the works. During...
This Practice Note addresses the concealing offence under section 327 of the Proceeds of Crime Act 2002 ( POCA 2002). It forms one of the principal money laundering offences under the Act; see Practice Note: Money laundering offences under the Proceeds of Crime Act 2002— The principal money laundering offences. For further detail on the other principal money laundering offences, see Practice Notes: Money laundering offences—the arrangement offence and Money laundering offences—acquisition, use and possession. POCA 2002, s 327 offence of concealing etc criminal property The offence is made out where a person does any of the following: conceals criminal property disguises criminal property converts criminal property transfers criminal property removes criminal property from England and Wales POCA 2002, s 327(1)(e) is a distinct mode of commission that applies when criminal property is taken out of the...
Proceedings by electronic means: procedure for an application for a consent order for a financial remedy in connection with matrimonial or civil partnership proceedings This Practice Note explains the effect of the Family Procedure Rules 2010, PD 41B, which prescribes the process by which an application for a consent order for a financial remedy, arising from proceedings for a matrimonial or civil partnership order, can be dealt with by electronic means. A separate digital route exists for issuing and progressing contested applications; see Practice Note: Online applications for financial remedies. Any reference in FPR 2010, PD 41B to ‘the online system’ is to the HM Courts and Tribunals Service ( HMCTS) platform known as the online financial remedy consent order service. That service forms part of My HMCTS, for which an organisation must register. Once registration is completed, cases can be handled online through...
What is a letter of non-crystallisation? When carrying out title due diligence on property owned by a company, the existence of a floating charge may well be revealed. See Practice Notes: Pre-contract searches— Company search and Pre-completion searches— Company search. In such circumstances, a letter or certificate of non-crystallisation might be needed in order to confirm that: the floating charge has not crystallised in relation to that specific property no action has been taken that has caused, or would cause, the charge to crystallise and attach to the property, and the chargee agrees to the property being sold, or to a second floating charge being created over it This confirms the company can transact with the property (still subject to any fixed charges and other title restrictions and limitations). Either the chargee or the chargor may issue the letter. However, it is better to...
What is a no contest clause A no contest clause, sometimes called a forfeiture clause, is a term in a Will that strips a beneficiary of their entitlement if they dispute the Will’s terms. Such clauses can also feature in trusts. As applications under the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975) have risen, interest in adding a no contest clause to a testator’s Will has similarly grown, as a way to deter or head off such claims. Can Family provision claims be excluded As a matter of public policy, it is widely accepted that the court’s jurisdiction cannot be excluded. Therefore, any Will provision purporting to bar a beneficiary from bringing an I( PFD) A 1975 claim would probably be ineffective and treated as void by the court. I( PFD) A 1975, ss 15 and 15A permit the court, on...
Dispute resolution under the NEC3 and NEC4 ECC This Practice Note reviews the dispute resolution route under the NEC3 and NEC4 contracts, encompassing dialogue between Senior Representatives, adjudication, Dispute Avoidance Board ( DAB) recommendations, and, if needed, final determination through litigation or arbitration. It concentrates on the Engineering and Construction Contract ( ECC). The relevant provisions sit in Options W1, W2 and, in the NEC4 ECC, W3; one of these must be chosen by the parties when the contract is formed. Parties must also complete essential entries in the Contract Data, for example, confirming whether disputes are to be finally resolved by litigation (ie court proceedings) or by arbitration. If the agreement is caught by the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996), Option W2 must be adopted, as it is the only option that permits disputes to be referred to...
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When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
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