Legal Practice Notes

What is an estoppel? As Lord Denning MR explained in Moorgate Mercantile v Twitchings (page [323]), estoppel is a rule of justice and equity which, in essence, means that where a person, through words or conduct, has led another to accept a particular state of affairs, he will not be permitted to resile from it if doing so would be unjust or inequitable. Although the House of Lords reversed Moorgate on its facts, this statement of principle was not displaced. In some cases, a party’s silence or inaction (that is, acquiescence) can ground an estoppel just as effectively as an express assurance or representation. As Calver J noted in Active Media v Burmester, Duncker, echoing the Court of Appeal in Ted Baker v Axa Insurance, the acquiescence doctrine arises where a reasonable person in the shoes of the party invoking the estoppel would...

What is environmental insurance? Environmental insurance shifts risk by indemnifying the policyholder for losses arising from potential environmental liabilities. For property-focused cover, the insured might be the purchaser, the vendor, or both. A standalone environmental policy is often necessary because public liability insurance commonly excludes environmental liabilities, except for sudden, unintended and unexpected pollution incidents. In addition, public liability usually responds only to third party damages and not to remediation of the insured’s own property. On-site remediation Off-site remediation Civil disputes Legal expenses Role of insurance Securing insurance can enable transactions or developments to progress where environmental risks and liabilities exist, by providing financial security and reducing uncertainty. It places the burden of liability with a suitable third-party insurer. Insurance can also support operators of high-hazard facilities in making financial provision for environmental loss. Key...

Practice Note This Practice Note is intended to offer information and hands-on guidance on English law subscription agreements for solicitors advising debut issuers of debt securities. It concentrates on debut issuers because, once an issuer has come to market, documentation for later offerings typically tracks very closely the papers used for that initial transaction; accordingly, the first deal’s documentation phase is the moment when an issuer and its advisers can review the terms in depth and—subject to prevailing debt capital markets norms—shape the form of the documents. The Note proceeds on the basis that debut issuers are unlikely to be large corporates, financial institutions, multilateral bodies (such as the World Bank) or sovereigns that customarily tap the international investment‑grade public debt markets, but rather entities active in particular segments of the market when conditions are favourable or when other funding sources (for example, bank loans) are...

Who can enforce? The ability to pursue enforcement against a bond issuer hinges on whether the bond issue uses a trustee or a fiscal agent. Where a trustee is appointed, the trustee will take enforcement action on behalf of all the bondholders. Where a fiscal agent is appointed, the bondholders themselves must enforce their rights against the issuer, as the fiscal agent plays no part in enforcement. The fiscal agent has no enforcement function. By contrast, the trustee acts collectively for holders when pursuing remedies. For details on the principal parties in a debt capital markets transaction, see Practice Note: Parties in an issue of debt securities. For further discussion of the differing considerations where an issue is structured with a trustee or a fiscal agent, see Practice Note: Parties in an issue of debt securities— Fiscal agent or trustee. If the bonds are issued in...

Effective preparation of bundles Meticulous bundle preparation underpins a calm, efficient hearing and is something practitioners should keep firmly in view as part of their overall work for any hearing. This Practice Note offers a guide to creating and deploying electronic bundles (or e-bundles) in civil proceedings in England and Wales. It sets out practical pointers on the interface between digital case management and e-bundles, the varieties of electronic bundle, judicial expectations when assembling electronic bundles, guidance in the Civil Procedure Rules ( CPR) on preparing bundles, effective methods for preparing and using electronic bundles, and the benefits and drawbacks of using electronic bundles. It also surveys widely applicable tools to consider when collating evidence and other documentation electronically. For general guidance on preparing a bundle for: trial—see Practice Note: Preparing trial bundles an interim application—see Practice Note: Preparing for an application hearing—...

When a confiscation order is issued against a defendant who holds realisable assets, the duty rests on them to liquidate those assets within the period specified by the order; however, at this juncture it is also possible to appoint an enforcement receiver (see: Enforcement receivers in confiscation—checklist). The Proceeds of Crime Act 2002 ( POCA 2002) does not prescribe a bespoke penalty for non-payment; rather, POCA 2002, s 35 treats any sum outstanding under a confiscation order as if it were a fine imposed by the Crown Court, which is then enforceable in the magistrates’ court. Broadly speaking, the recovery of fines is governed by the fine enforcement provisions in the Sentencing Act 2020 ( SA 2020) and by Part III of the Magistrates’ Courts Act 1980 ( MCA 1980). Pursuant to POCA 2002, s 35, the Crown Court may set a term of...

Borrowers can choose from a broad range of debt and capital structuring routes. Traditionally, senior debt (typically provided by banks) sat at the top, then mezzanine finance, followed by junior debt, each ranking ahead of unsecured creditors and shareholders/equity holders. After the 2007/8 credit crunch, businesses increasingly tapped capital markets and non-bank sources (eg private credit) to widen their funding, adding further layers of indebtedness. This Practice Note offers a straightforward overview of the different tiers of debt and security a restructuring lawyer may encounter. It outlines the financing layers and the forms of security commonly seen in practice by a restructuring lawyer. It also sketches how those tiers now sit together in practice. Capital structures and interplay between creditors Typically, external borrowings sit at the operating company ( Opco) level. The Opcos own the core business assets (eg premises, key...

Introduction This Practice Note sets out the relevant law and procedure when a party dies either during a personal injury action or before proceedings are issued. It addresses: the statutory and common law foundations allowing personal injury claims to continue after the death of a claimant or defendant limitation the categories of loss recoverable by a claimant’s estate the practical measures required depending on whether the deceased was the claimant or the defendant, including: confirming the correct parties and whether Personal Representatives have been appointed client care and funding considerations managing evidence, including Civil Evidence Act notices payments into court how the low-value claims protocols apply This Practice Note does not deal with...

Powers of the local authority The local authority may take action regarding dangerous buildings under several statutes: section 77 of the Building Act 1984 ( BA 1984)—court order BA 1984, s 78—emergency measures BA 1984, s 76—defective premises BA 1984, s 79—ruinous and dilapidated buildings and neglected sites section 80 of the Environmental Protection Act 1990 ( EPA 1990)—statutory nuisance sections 21 and 22 of the Health and Safety at Work etc Act 1974 ( HSWA 1974)—improvement and prohibition notice Meaning of 'dangerous building or structure' The term ‘dangerous structure’ embraces any building, part of a building, or other structure that presents a serious risk to the public. Illustrations include loose slates/tiles, vehicle damage or collapsing walls, loose chimneys, leaning garden walls, broken hoarding, etc. Such hazards may arise from poor maintenance, fire, storm, vehicle impact or...

Prior to the hearing of a creditors’ bankruptcy petition, certain actions are required to satisfy the procedural obligations contained in the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, and the Practice Direction on Insolvency Proceedings ( PDIP). This includes measures open to the debtor or any other creditor who wishes to take part formally in the creditors’ bankruptcy petition process. Steps to be taken by the petitioning creditor before the hearing Before the bankruptcy petition is heard, the petitioning creditor must complete several procedural tasks: They must confirm that a minimum of 14 days has passed since service of the bankruptcy petition on the debtor in order to comply fully with the applicable procedural framework under IR 2016 and PDIP......

This Practice Note reviews electronic working (e-working), electronic communications and electronic filing (e-filing) within CPR PD 5B. It explains the reach and scope of electronic communication and email filing, identifies which messages and documents may appropriately be emailed to the court, and clearly outlines the technical requirements and parameters for transmitting emails and attachments to the court under CPR PD 5B. For broader guidance on filing at court more generally, see Practice Note: Filing documents at court in civil proceedings. Scope of electronic communication and email filing under CPR PD 5B CPR 5.5(1) states that a practice direction can provide for documents to be lodged or sent to the court through an electronic filing and case management system, or otherwise by other electronic means. CPR PD 5B sits alongside CPR 5.5 and permits parties in proceedings under the Civil Procedure Rules ( CPR) to...

This Practice Note explains the requirements for completing the Less Complex Claims Disclosure Review Document ( LCCDRD) when applying for Extended Disclosure under the Disclosure Scheme operating in the Business and Property Courts ( B& PCs) pursuant to CPR PD 57AD. The LCCDRD is used where a claim is classified as a Less Complex Claim under CPR PD 57AD, Appendix 5. To determine whether your claim falls within that designation, see Practice Note: Disclosure Scheme— Extended Disclosure and Less Complex Claims. If the claim is not a Less Complex Claim, you must instead complete the Disclosure Review Document ( DRD); see Practice Note: Disclosure Scheme—completing and filing the Disclosure Review Document ( DRD). The Disclosure Scheme came into force on 1 October 2022 following a disclosure pilot scheme. Judgments produced under the pilot remain pertinent and are included below. What is the LCCDRD? The LCCDRD appears in CPR PD 57AD,...

This Practice Note outlines the key steps for preparing and lodging the Disclosure Review Document ( DRD) when applying for Extended Disclosure under the Disclosure Scheme operating in the Business and Property Courts ( B& PCs) pursuant to CPR PD 57AD. The Disclosure Scheme took effect on 1 October 2022 following a disclosure pilot scheme. Judgments from the pilot continue to be relevant and are included and noted below. What is the DRD? The DRD is the mechanism by which the parties must carefully define, discuss and attempt to agree together the scope of any Extended Disclosure sought through Extended Disclosure Models C, D or E. The completed DRD is a collective document of all parties involved. It must be provided to the court in advance of the first scheduled case management conference ( CMC). The DRD (including guidance notes for...

What is compliance? The Civil Procedure Rules ( CPR) constitute a procedural code, the overriding objective of which is to enable the court to deal with cases justly and at proportionate cost ( CPR 1.1(1)). Compliance describes the requirement on parties to follow and observe those rules, the accompanying practice directions, and any applicable court orders. The courts possess power to enforce and secure compliance ( CPR 1.1(2)(g)), and a failure to comply can result in sanctions, with the defaulting party needing to apply for relief from sanctions ( CPR 3.8). In addition, court guides set out specific rules and guidance for each relevant court, in addition to what is provided for in the CPR. For further information on the various court guides, see the Practice Note: Court guides and other guidance. During the course of any litigation, both the court and the parties are...

Basis of the right to re-open a final determination of an appeal The authority to re-open a final decision was recognised in Taylor v Lawrence, which confirmed that the Court of Appeal retains a residual power to prevent real injustice in exceptional circumstances. The deployment of the Taylor v Lawrence jurisdiction is controlled by CPR 52.30 ( Helios Oryx v Trustco Group Holdings). The Court of Appeal has stressed that CPR 52.30 was enacted to confine, not broaden, the reach of the Taylor v Lawrence jurisdiction—only exceptional situations warranting the re-opening of an appeal, as illustrated by Taylor v Lawrence and later authorities, bring the rule into play ( Jaffray v Society of Lloyds; Ingenious Games v HMRC)......

The Court of Arbitration for Sport ( CAS) Founded in 1984, the CAS is an independent body dedicated to resolving disputes in the field of sport, and is the leading centralised international authority that appoints tribunals to render final decisions on certain types of sport disputes. A wide spectrum of disputes is determined at the CAS, as reflected in its various divisions. Unless indicated otherwise, ‘ CAS’ in this Practice Note is used in a broad sense to include any CAS division, the International Council of Arbitration for Sport ( ICAS), and the CAS Court Office. In French, it is known as the Tribunal Arbitral du Sport ( TAS). Headquartered in Lausanne, Switzerland, the CAS also maintains representative administrative offices in Sydney, Australia and New York, USA. Generally, the CAS manages the earliest stages of an arbitration once proceedings have begun but before...

This Practice Note reviews service of the claim form where a contract between the parties sets out an agreed method for serving court documents. It explains the requirements for service of the claim form under CPR 6.11. For guidance on: contractually agreed methods of service, see Practice Note: Contractually agreed methods of service methods of service in the jurisdiction, see Practice Note: Service in England and Wales—a guide for dispute resolution practitioners methods of service out of the jurisdiction, see Practice Note: Cross-border service—methods of effecting service The claim form— CPR 6.11 requirements CPR 6.11 addresses situations where the parties have contractually agreed a method of service or a place for service of the claim form. The following must be observed: Requirement: the claim must be solely in respect of that contract. Judgment: this was considered in Taberna Europe CDO II PLC v...

Practitioners should be aware that, on 31 July 2025, the Law Commission confirmed it will review the product liability framework established by the Consumer Protection Act 1987 ( CPA 1987). The objective is to determine whether the present legal architecture remains effective in addressing harm arising from defective products, particularly in view of technological developments over the last 40 years. The review will consider the regime’s fitness for managing risks linked to emerging digital technologies and contemplate potential reforms to ensure it continues to protect consumers whilst promoting innovation and industry. For more information, see: LNB News 01/08/2025 53... Application of the Consumer Protection Act 1987 CPA 1987, Part II confers regulation‑making powers on the Secretary of State in relation to the safety of specified products. Selling, or offering for sale, those specified products in contravention of any provision made under Part II...

Aggregation—background Aggregation continues to pose a significant challenge when settling insurance and reinsurance claims, spawning numerous market disputes. Claims managers, arbitrators and even appellate courts often adopt differing interpretations of what particular policy wordings seek to achieve within an aggregation clause. After a run of rulings on familiar aggregation wording in the late 1990s and early 2000s, matters grew quieter. The final waves of litigation arising from the 9/11 tragedy, alongside clusters of solicitors’ and medical negligence claims, illuminated the modern approach to aggregation. More recently, the wealth of insurance disputes sparked by the coronavirus ( COVID-19) pandemic—predominantly concerning business interruption losses—has given the courts a platform to revisit the relevant principles. What are aggregation clauses? An aggregation clause is a familiar feature of insurance and reinsurance contracts, allowing two or more separate losses covered by the policy to be treated as a single loss for the...

Slip rule An adjudicator may, within a reasonable period after handing down their decision, put right any accidental error or omission. Commonly described as the ‘slip rule’, it operates where the adjudicator’s mistake is an inadvertent slip that fails to capture their first intention. Though this principle was implied by common law in the absence of any contrary agreement, it is now set out expressly in section 108(3A) of the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996). Section 108(3A) was introduced by the Local Democracy, Economic Development and Construction Act 2009 and applies to contracts entered into on or after 1 October 2011 in England and Wales, and on or after 1 November 2011 in Scotland. Under HGCRA 1996, s 108(3A), a contract must contain a written term permitting the adjudicator to correct their decision so as to remove a...