Legal Practice Notes

While operating an occupational pension scheme, trustees might decide to bring in an investment consultant and/or a fiduciary manager. In contrast to ‘fund managers’, investment consultants and fiduciary managers are not regarded as ‘professional advisers’ for the purposes of pensions legislation. For more detail on the rules about appointing professional advisers, refer to Practice Note: Appointing pension professional advisers and other service providers. Development of regulatory framework After a reference from the Financial Conduct Authority ( FCA), the Competition and Markets Authority ( CMA) investigated investment consultancy services ( IC services) and fiduciary management services ( FM services) supplied to pension schemes, and issued its final report on 12 December 2018. It concluded that trustee engagement was weak, that clear and comparable information in order to assess value for money was missing, and that clients were nudged by investment consultants towards their own,...

This Practice Note considers the interaction between the statutory moratorium under Schedule B1 to the Insolvency Act 1986 ( IA 1986), which prevents most creditor or third-party actions against an insolvent company in administration, and the right of a secured creditor to enforce its security over the company’s secured asset by appointing a fixed charge receiver For an overview of the administration moratorium, see Practice Note: The moratorium in administration. This note focuses solely on how that moratorium interfaces with a secured creditor’s ability to appoint a fixed charge receiver over the secured asset. It does not cover other enforcement avenues open to the secured creditor. Nor does it address consequences for a lender’s ability to appoint a receiver where a ‘stand-alone’ moratorium under IA 1986, Pt A1 is in force. In that scenario, save for limited exceptions, court permission must be obtained before taking...

Selecting the appropriate arbitral tribunal is crucial to the success of an arbitration, both administratively and legally. Anyone involved in the selection or nomination should treat this phase with care to ensure the right individuals are chosen. In-house counsel will often contribute to this process—see Practice Note: The role of in-house counsel in international arbitration. The relevance of the arbitration agreement The first step is to review what, if anything, the arbitration agreement sets out regarding the constitution of the tribunal: What does your arbitration agreement stipulate? Are there defined criteria concerning qualifications, skill set, language, level of experience or, critically, the nationality of your arbitrator(s)? Does the chosen seat or legal place of arbitration affect this (eg a requirement to be a lawyer, or to be a national of a particular jurisdiction)? Provisions of any applicable arbitration rules—if the...

STOP PRESS: From 24 February 2025, the core provisions of the Procurement Act 2023 ( PA 2023) apply. Any procurement commenced on or after that date must follow PA 2023. Procedures started under the previous framework—the Public Contracts Regulations 2015 ( PCR 2015), the Utilities Contracts Regulations 2016, the Concession Regulations 2016, and the Defence and Security Public Contracts Regulations 2011—must continue to be run and administered under those regimes. See Practice Note: Introduction to the Procurement Act 2023— PA 2023. PCR 2015 as assimilated law: PCR 2015 are EU-derived domestic legislation and therefore constitute assimilated law under sections 2 and 6 of the European Union ( Withdrawal) Act 2018. For practical guidance on the status and interpretation of assimilated law, see Practice Note: Assimilated law. Broadly, two categories of consultants are engaged in public procurement: consultants with technical expertise in the subject matter (for...

ARCHIVED : This Practice Note is archived and is not being updated or maintained. CORONAVIRUS ( COVID-19): Many arbitral organisations have addressed the coronavirus pandemic by issuing practical guidance and by adapting their standard procedures and ways of working. For details on how this material and connected arbitral processes might be affected, see Practice Note: Arbitral organisations and coronavirus ( COVID-19)—practical impact. For further background and context, see: Coronavirus ( COVID-19) and arbitration—overview. Selecting the tribunal is a critical stage in any arbitration. The suitability of the tribunal underpins procedural efficiency and a fair outcome. It helps the process run effectively and supports a just result. How an arbitral tribunal is appointed will turn on various considerations, above all any arrangements the parties have set out in their arbitration clause or another written instrument; see Practice Note: Choosing your arbitral tribunal. This Practice Note covers matters...

For details on the nature of a special manager, who may appoint one and the timing of such appointments, refer to Practice Note: What is a special manager, and when to appoint one? The mechanism for appointing a special manager under the Insolvency Act 1986 ( IA 1986) is largely the same in corporate insolvency ( IA 1986, s 177) and in bankruptcy ( IA 1986, s 370). On any application, three matters usually arise: the format of the application the office-holder’s report that accompanies the application, and the security or undertaking to be provided by the special manager The application The application proceeds by way of an insolvency application under Part 12 of the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, whether in personal or corporate insolvency. It should be brought in the court that has...

Appointment of replacement arbitrators This Practice Note addresses the appointment of substitute arbitrators under the Arbitration Act 1996 ( AA 1996) and under particular arbitration rules. Where an arbitrator ceases to hold office—creating what is commonly termed a 'casual vacancy'—a replacement arbitrator may, or will, need to be appointed. The method of appointment depends on the applicable procedural framework involved. For guidance on when an arbitrator may cease to hold office, see Practice Note: Tribunal—resignation, revocation or death of an arbitrator. For guidance on removing an arbitrator under AA 1996, s 24, see Practice Note: AA 1996—applying to remove an arbitrator (s 24)......

Short guide to appointing a company secretary This concise overview outlines the steps to appoint a company secretary. For comprehensive, practical guidance covering legislation, case law and procedure, see: Practice Notes: Appointment of a company secretary and Company secretary—role, responsibilities and liabilities, and Flowchart: Appointment of a company secretary—flowchart. Check if the company is required to have a company secretary Only public companies are required by the Companies Act 2006 ( CA 2006) to appoint a company secretary. Private companies are not obliged under the CA 2006 to have one, although their articles of association may mandate an appointment, or they may elect to appoint a secretary even where it is not compulsory. Earlier statutory provisions applicable before April 2008 did oblige private companies to have a company secretary. For details on how those provisions may continue to affect private companies...

Appointed representatives ( ARs) acting for multiple principals This Practice Note summarises the framework that applies where more than one principal retains an appointed representative. It covers: the overarching rule that allows an AR to act for more than one principal the exceptions to that rule the Financial Conduct Authority ( FCA) requirements that must be satisfied before an AR may represent several principals the contract terms that multiple principals must agree before appointing an AR For further information, see Practice Note: Appointed representatives. The Financial Services and Markets Act 2000 ( FSMA 2000) and the Financial Services and Markets Act 2000 ( Appointed Representative) Regulations, SI 2001/1217 (the AR Regulations) do not prevent ARs from acting for more than one principal......

Background The Financial Reporting Council ( FRC) oversees corporate governance in the UK and, accordingly, is tasked with issuing and maintaining a single benchmark for good corporate governance practice, now titled the UK Corporate Governance Code (the Code), previously the Combined Code. Main ‘ Principles’ Supporting ‘ Provisions’, several being more prescriptive than the Principles The most recent iteration was issued by the FRC on 22 January 2024 (the 2024 Code) and made only modest adjustments to the edition released in 2018 (the 2018 Code). Its release followed an FRC consultation launched on 24 May 2023, which aligned with the legislative reforms set out in the government’s response to its May 2022 White Paper, Restoring Trust in Audit and Corporate Governance (for more details, see: Share Incentives weekly highlights—25 May 2023— Corporate governance). The consultation set out 18 proposed changes to the 2018 Code,...

Practice Note This Practice Note explains the process for making a parental order application under the Human Fertilisation and Embryology Act 2008 ( HFEA 2008). It gives guidance on who may apply, where an application should be issued, acknowledging service, and the steps for the first directions hearing and the final hearing. It also outlines provisions on evidence of agreement, when agreement will not be required, and the parental order register. A parental order is an order by which a child is recognised in law as the child of the applicant(s) where the child was carried by a woman who is not the applicant, or not one of the applicants, following the placement in her of an embryo, or sperm and eggs, or through her artificial insemination, and the gametes of the applicant, or at least one of the applicants, were used to create the...

Practice Note There are several routes to start criminal proceedings in England and Wales, including: charging at the police station after arrest issuing a written charge with a requisition serving a written charge together with a single justice procedure notice applying for a summons These examples represent common mechanisms, among others, for starting a case. The Note deals exclusively with applications for arrest warrants to begin proceedings in practice. This Practice Note focuses on a less common route: seeking an arrest warrant to commence proceedings. Prosecutors use this to ensure the accused attends court where a summons or requisition cannot be issued because the defendant’s address is unknown. It is also available to public prosecutors who are not authorised to issue a written charge under section 29 of the Criminal Justice Act 2003 ( CJA 2003), as well as to private...

Opposing a winding-up petition Establishing a debt Serving a statutory demand is not a precondition to presenting a winding-up petition against a company. Long-standing authority confirms that a petition should not be brought where the petition debt is genuinely disputed on substantial grounds. It is likewise an abuse of process to attempt to deploy the winding-up court as a means of routine debt recovery (although, in Sell Your Car With Us Ltd v Sareen, the judge held that a creditor owed an undisputed sum is entitled to petition for winding-up). Consequently, a prudent creditor will usually serve a statutory demand before commencing winding-up proceedings to evidence an undisputed debt, unless a judgment debt has already been obtained. Under section 122(1)(f) of the Insolvency Act 1986 ( IA 1986), the court may wind up a company that is unable to pay its debts. See Practice Note: Can you...

UK status Since 31 January 2020 (exit day), the UK has not been an EU Member State. Under the Withdrawal Agreement there followed an implementation period during which EU law still applied to the UK. From 1 January 2021, however, the key operative elements of Regulation ( EU) 2015/848 ( OJ L141 5.6.2015 p 19), the Recast Regulation on Insolvency, concerning automatic recognition, ceased to apply in the UK (see Practice Note: Brexit—impact on Recast Regulation on Insolvency [ Archived]). Other Member States nevertheless continue to apply the EU Recast Regulation on Insolvency when its conditions are met, and this note considers how it functions between Member States. EU Recast Regulation on Insolvency The EU Recast Regulation on Insolvency introduced substantial changes to the EC Regulation on Insolvency, Regulation ( EC) 1346/2000 ( EC Regulation on Insolvency). For the full text of the EU Recast...

Practice Note This Practice Note assists with identifying the applicable law for contracts concluded on or after 1 January 2021. For agreements entered into before that date, the UK courts apply a different applicable law framework, which varies according to when the contract was made. For detailed guidance, see the following resources: Practice Note: Applicable law—a guide for dispute resolution practitioners Practice Note: Assimilated law In this Practice Note, UK Rome I refers to Regulation ( EC) 593/2008. That regulation governs the choice of law where the contract was entered into on or after 1 January 2021. Previously called Retained Rome I, from 1 January 2024 it has been retitled Assimilated Rome I—the change is in name only; the regulatory provisions are unchanged. Authorities may use either designation, and therefore, for consistency, this Practice Note adopts the term UK Rome I. This...

FORTHCOMING DEVELOPMENTS On 4 December 2023, the then Conservative Home Secretary, James Cleverly MP, unveiled a series of measures intended to reduce legal migration to the UK. Among these, for Appendix FM applications on the 'five-year route', the standard required minimum income threshold for initial applications was increased from £18,600 to £29,000, scheduled for Spring 2024. This rise took effect through amendments to the Immigration Rules from 11 April 2024. Two further increases were originally anticipated in due course, but the new Labour Home Secretary, Yvette Cooper MP, commissioned the Migration Advisory Committee to review these financial requirements. The Committee’s report has now been published, and a new financial requirement is expected to be announced later in 2025. For further information, see Practice Note: Immigration calendar......

This Practice Note This Practice Note was prepared by Anne Redston, Barrister. It expresses her personal views; she is not authorised to speak for the Tribunals Service or the judiciary. Before you read this Practice Note, you should read Practice Note: Appealing an HMRC decision. You are also encouraged to consider whether an HMRC review is appropriate; see Practice Note: HMRC review of a decision. The Note highlights the main matters to raise with your client when deciding whether to pursue an appeal to the First-tier Tax Tribunal ( FTT). It addresses: payment of the tax that is in dispute the merits and prospects of the case matters concerning privacy and confidentiality You should also reflect on the likely costs position. Further guidance on costs can be found in Practice Note: Costs in the First-tier Tax Tribunal ( FTT). This Practice Note, and the related Notes on appeals to the FTT,...

Appeal work in civil proceedings sits under CPR 52 together with the related practice directions, collectively known as CPR PD 52A, 52B, 52C, 52D and 52E. PD 52A sets out the overarching rules on appeals, while PD 52B adds extra rules for appeals to the County Court and the High Court. Initiating an appeal In starting an appeal, the general framework in CPR PD 52A applies. Where the appeal is to the County Court or the High Court, the appellant must, in addition, meet the obligations in CPR PD 52B. Those provisions prescribe particular steps for filing and serving the appellant’s notice, the accompanying documents that must be lodged with the notice, applications made within the appeal, and any request to extend the time for filing. For more information, see Practice Note: Starting an appeal in a County Court or the High Court......

This Practice Note explores the courts’ treatment of appeals that turn on issues of foreign law. For general appeal guidance, see: Civil appeals: general and preliminary considerations—overview. For wider guidance on appeals challenging findings of fact, see Practice Note: Grounds of appeal—appealing a finding of fact. It also references the decision in Mac Millan Inc v Bishopsgate Investment Trust Plc ( No 4). Note that some judgments cite it as MCC Proceeds Inc v Bishopsgate Investment Trust... Foreign law is a question of fact Foreign law is approached as a factual matter because, under settled principles of English law, an English judge is not presumed to know foreign law. For guidance, see Practice Note: Foreign law—guide for dispute resolution practitioners— What is foreign law?... Role of the judge at first instance While this Practice Note addresses how the appeal courts deal with appeals on foreign law points, it is...

ARCHIVED: this Practice Note is no longer maintained and is provided solely for background information. In addition, some links may not direct you to the provisions as at the date this guidance was issued. Changes to appeals in 2016—what do you need to know? In 2016, months of consultations and meetings came to a head, aimed at addressing the case backlog in the Court of Appeal. Proposals were put forward to cut the court’s workload, notably by tightening the threshold for permission to appeal. Not every proposal passed through consultation, but many did, resulting in: an entirely new CPR 52; substantial revisions to the Practice Directions—particularly CPR PD 52A and CPR PD 52C; the re-routing of appeals away from the Court of Appeal......