Legal Practice Notes

This Practice Note outlines the procedure for annulling a bankruptcy order under one of the two bases in section 282(1) of the Insolvency Act 1986 ( IA 1986). It does not address annulment where an undischarged bankrupt has entered into an individual voluntary arrangement ( IVA). For more detail on what annulment involves, the possible grounds, and the court’s discretion to annul, see Practice Note: Annulment of bankruptcy orders. See also the following checklists for applications relying on the alternative grounds: Summary checklist and timeline for annulment applications where bankruptcy order ought not to have been made Summary checklist and timeline for annulment applications where payment in full The application The application is made under IA 1986, s 282, which sets out two separate routes for annulling a bankruptcy. The application notice must include the information required by rule 1.35 of the...

The rationale behind patents Patents safeguard novel inventions and are intended to drive innovation by rewarding the owner with a period of 20 years or more during which they can stop others from infringing—that is, making, using, importing or selling the invention without permission. For further guidance, see Practice Note: Patent infringement. In the UK, patents are granted after a formal filing and assessment. During this phase—known as patent prosecution—a patent examiner at the relevant intellectual property office (for example, the UK Intellectual Property Office or the European Patent Office ( EPO)) reviews whether the claimed invention is patentable (meets the patentability criteria) and whether the application satisfies specified formalities. Practice Notes: Patentability and exclusions from patentability Patent applications—how to obtain patent protection in the UK European patents—application procedure Following Brexit, the UK remains within the European patent system and may still be designated in European patent...

Employer-backed pension arrangements are, in effect, tax‑favoured savings structures through which employers fund future financial support for staff and their dependants in later life. Unsurprisingly, the employment relationship, shaped by the contract of employment and general law, is central to pension scheme governance. The key aspects of that role are relevant to occupational schemes, though many of the same points also apply where pension provision is via personal pension arrangements to which an employer contributes. Dual nature of accrued pension rights under trust and contract law Accrued pension rights under an occupational pension scheme can typically be categorised as: pension rights of scheme members (trust beneficiaries) arising under the trusts of the scheme, and pension rights arising as contractual terms of the employment relationship between an employer and employee Members’ rights under the pension scheme trust are, in principle, enforceable against the scheme’s...

A registered pension scheme may provide benefits without an overall ceiling. Nevertheless, under the Finance Act 2004 ( FA 2004), where a scheme makes an unauthorised payment, tax charges arise for both the recipient and the scheme unless a specific exception applies (though, in certain situations, individuals and companies may seek from HMRC a discharge of liability for those charges where appropriate). For additional detail, see Authorised and unauthorised payments and Unauthorised payments: tax charges and reporting requirements, together with the associated reporting obligations outlined there. Exceptions in special circumstances At times, pension schemes make mistakes that lead to unauthorised payments being issued. There are also situations where making an unauthorised payment is necessary to ensure a beneficiary is treated equitably. Accordingly, there are several exceptions to the standard rules governing unauthorised payments. Such exceptions apply only in particular, defined...

This Practice Note This Practice Note explains the criteria for enforcing an order made in family proceedings via a charging order, as authorised by the Charging Orders Act 1979 ( COA 1979). It covers: Which debts may be enforced Which assets may be made subject to a charge Enforcement by sale It also outlines the procedural steps to follow under the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, Pt 40, together with FPR 2010, PD 40A. A charging order is a direction that secures payment of a judgment debt by placing a charge over specified categories of the debtor’s capital assets. Its function is to provide security for the liability, rather than to execute it. A creditor is the person to whom payment of a sum is owed under a judgment or order, or a person entitled to enforce that judgment or order; this includes a court officer...

This Practice Note sets out what an activity direction under the Children Act 1989 is, when such a direction may be made, and the sorts of requirements it may contain. It also describes what activity conditions are, indicating the circumstances in which they can be imposed and upon whom. In addition, it considers the court’s ability to ask the Children and Family Court Advisory and Support Service ( Cafcass) to monitor compliance with any activity direction, condition, or order... Child arrangements orders A child arrangements order is an order concerning: with whom a child is to live, spend time, or otherwise have contact; and when a child is to live, spend time, or otherwise have contact with any person Standard orders exist for private law children proceedings, including for directions and final orders. Their use is not compulsory, but it is strongly...

Notices A notice can offer modest protection for an asset consisting of land or property that is registered, where enforcement of an order or judgment is sought. Such protection is limited in scope and applies to registered estates only. It relates solely to entries on the register. The statutory provisions are found in the Land Registration Act 2002 ( LRA 2002). A notice is the device used to safeguard a third-party right. It is entered in the charges register of the affected title, alerting any prospective buyer to the creditor’s stake in the land. A notice binds anyone later acquiring the land and supplanted the caution against dealings available under the Land Registration Act 1925 (now repealed by LRA 2002). However, a notice does not stop the legal owner disposing of, or otherwise transacting with, the property. That outcome can only be achieved by...

This Practice Note explores how manufacturers and distributors of goods work together, concentrating on the distribution contract that should govern their dealings. It touches on issues that arise before signature and outlines the key clauses—covering territory, appointment, the manufacturer’s duties, the distributor’s duties, pricing and payment, intellectual property, title in goods, data protection and termination. For template agreements, see Precedents: Distribution agreement—exclusive—long form, Distribution agreement—non-exclusive—long form and Selective distribution agreement—non-exclusive. General Unlike agency arrangements, few statutes regulate distribution in the UK beyond domestic competition law, so the parties’ contract largely dictates their relationship. A manufacturer typically wields less day‑to‑day control over a distributor than a principal does over an agent. The distinction is that an agent sells in the name of, and on behalf of, its principal, while a distributor purchases and resells on its own account. Accordingly, in a...

This Practice Note examines the recognition and enforcement of arbitral awards in the Netherlands. Introduction The Netherlands is an arbitration-friendly jurisdiction with a modern, pragmatic system of Arbitration Law. Dutch arbitration law is contained in the 4th book of the Dutch Code of Civil Procedure (‘ DCCP’), often called the Netherlands Arbitration Act. For enforcement, the Act distinguishes between domestic awards, meaning awards issued in arbitrations seated in the Netherlands, and foreign awards, meaning awards issued in arbitrations seated outside the Netherlands. In essence, domestic awards are those rendered with the seat in the Netherlands, whereas foreign awards are those rendered with the seat abroad. Both categories only become enforceable once leave to enforce, also termed an exequatur, has been granted. After that leave is obtained, an award can be enforced in the Netherlands in the same way as an enforceable State court...

Who is the General Osteopathic Council ( GOs C)? The General Osteopathic Council ( GOs C) is a corporate body established by the Osteopaths Act 1993 ( OA 1993) with the overall role of advancing and overseeing the profession of osteopathy, with an overarching purpose, first and foremost, of protecting the public by: protecting, promoting and upholding the public’s health, safety and wellbeing promoting and sustaining public trust in the osteopathic profession, and promoting and preserving appropriate professional standards and conduct among its members This Practice Note outlines and provides guidance on GOs C fitness to practise processes, procedures and proceedings, inquiries and investigations, and applications for restoration to the Register. It is a criminal offence to call yourself an ‘osteopath’ without being registered with the GOs C. For clarity and ease of reference, this Practice Note should be read alongside Practice Notes: Common principles in fitness to...

As a broad principle, hearsay does not qualify as admissible proof in Scottish criminal proceedings (see, for instance, Introduction: Stair Memorial Encyclopaedia [237]). Yet there are a number of recognised departures from that principle. The first and most straightforward exception in Scots Law permits hearsay to be led simply to demonstrate that a statement occurred (commonly termed primary hearsay). Such material, however, is not receivable as proof at trial of the truth of what was asserted (secondary hearsay). For further detail, see Introduction: Stair Memorial Encyclopaedia [237]. Accordingly, parties may adduce evidence to establish that words were spoken, which may bear upon a person’s knowledge or serve to account for later conduct; nevertheless, that evidence cannot establish that the content of the utterance was true and accurate. This Practice Note addresses the other main exception to the hearsay prohibition: statements made by the accused...

Before a Will can be admitted to probate, the court must be satisfied that the testator knew and approved its contents at the time of execution. Where testamentary capacity and due execution are established, a prima facie presumption of knowledge and approval arises. Even so, the court may require further affirmative proof, particularly where: the testator has a serious infirmity such as blindness or deafness, or is illiterate there is a mistake or inadvertence in the drafting of the Will the circumstances surrounding the drafting and/or execution create suspicion, eg where the person preparing the Will takes a benefit ( Butlin v Barry) The court will not now assume knowledge and approval simply because the Will was read over to a capable testator or its contents were otherwise notified; there is no inflexible rule shutting off further enquiry,...

This practice note considers the doctrine of undue influence in challenges to the validity of a Will. It will address: what undue influence is how undue influence in Wills differs from lifetime transactions the burden of proof the standard of proof the relationship between undue influence and fraudulent calumny the relationship between undue influence and other bases for contesting the validity of a Will how to plead undue influence practical guidance for running undue influence claims What is undue influence? A Will is only valid if it satisfies the relevant execution formalities and is substantively valid. A Will procured through undue influence lacks substantive validity because the disposition does not represent the testator’s true intentions. Rather, the testator’s disposition has been secured by coercion or fraud. The distinction between undue influence arising from coercion and from fraud is...

ARCHIVED This Practice Note has been archived and is not being maintained. CORONAVIRUS ( COVID-19) Many arbitral organisations have addressed the coronavirus pandemic by issuing practical guidance and/or altering their usual procedures and methods of working. For insight into how this content and related arbitration proceedings may be affected, see Practice Note: Arbitral organisations and coronavirus ( COVID-19)—practical impact [ Archived] [ Archived]. For more information, see: Coronavirus ( COVID-19) and arbitration—overview. This Practice Note explains what a respondent should do when it receives a Request for Arbitration under the 2017 International Chamber of Commerce ( ICC) Rules of Arbitration (2017 ICC Rules). It also cites the ICC Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration ( ICC Note). References in this Practice Note to articles and appendices of the ICC Arbitration Rules are to the 2017 ICC Rules...

ARCHIVED : This Practice Note has been archived and is not maintained . CORONAVIRUS ( COVID-19): Numerous arbitral organisations have addressed the coronavirus pandemic by issuing practical guidance and adjusting their standard procedures and working practices. For details on how this content and associated arbitration proceedings may be affected, see Practice Note: Arbitral organisations and coronavirus ( COVID-19)—practical impact [ Archived] [ Archived]. For further information, see: Coronavirus ( COVID-19) and arbitration—overview. This Practice Note considers the requirements for an award under the 2017 International Chamber of Commerce ( ICC) Rules of Arbitration (2017 ICC Rules). The 2017 ICC Rules govern any ICC arbitration begun on or after 1 March 2017, unless the parties have chosen the rules current at the date of their arbitration agreement (which is improbable). The 2017 ICC Rules include: an expedited procedure that applies by default where the...

Enduring powers of attorney Since 1 October 2007, it has no longer been possible to set up an enduring power of attorney ( EPA). This follows the repeal of the Enduring Powers of Attorney Act 1985 ( EPAA 1985) by the Mental Capacity Act 2005 ( MCA 2005). However, EPAs made before that date are not invalidated if the donor later loses mental capacity. Instead, they can still be relied upon by the attorneys, provided they are registered with the Office of the Public Guardian. Accordingly, earlier EPAs remain capable of operation once that formality is satisfied. Issues can still emerge about the level of capacity needed to create or revoke an EPA—which is distinct from that for a lasting power of attorney ( LPA)—and, in particular, whether the donor had capacity at the point of execution. The common law presumption of...

The basic rule for valuation of property for IHT purposes For inheritance tax ( IHT), property is assessed by reference to its open market value at the relevant time, meaning: the amount the asset could reasonably achieve on a sale in the open market at that date without assuming any reduction simply because the entire property is brought to market at once This is referred to as the open market value test. For more detail on valuing assets for IHT and the associated principles, see Practice Note: IHT—valuation principles and particular types of property. This approach applies when assessing property for IHT purposes. How are liabilities taken into account for inheritance tax? When determining the value of an individual’s estate to calculate IHT on death, the personal representatives ( PRs) may deduct the deceased’s debts and liabilities. In general, liabilities are likewise deductible when valuing an...

Section 1 of the Public Order Act 1986 ( POA 1986) establishes the offence of riot. It is prosecutable only on indictment before the Crown Court. Proceedings for riot, or for inciting riot, may begin solely by, or with the approval of, the Director of Public Prosecutions. Elements of the offence of riot Under POA 1986, s 1, the prosecution must show that: twelve or more individuals were together at the time used, or threatened to use, unlawful violence for a shared aim, and the behaviour was such as would cause a person of reasonable firmness present at the scene to fear for their personal safety, and each defendant engaged in unlawful violence, and intended that such violence advance the common purpose, or was aware their conduct might be violent Unlawful violence ‘ Violence’ in the POA 1986 is defined to encompass any violent conduct. The definition expressly includes violence against property as well as...

This Practice Note sets out the meaning of a confession under the Police and Criminal Evidence Act 1984 ( PACE 1984) and the means available to control the admissibility of confession evidence in a criminal trial. It also addresses the procedures for excluding a confession pursuant to PACE 1984, ss 76 and 78. What is a confession? A confession is broadly defined in PACE 1984, s 8(2) as any statement that is wholly or partly adverse to the person who made it. There is no need for the confession to be made to a figure in authority, such as a police officer, and PACE 1984, s 82(1) states that the 'statement' may be made by 'words or otherwise'. This means a confession may be oral or in writing and may encompass conduct, including a nod of acceptance. The courts have decided that, to amount to a...

Exceptions under the CJA 2003 The reception of hearsay evidence is governed by the Criminal Justice Act 2003 ( CJA 2003). See Practice Note: Admissibility of hearsay evidence. The CJA 2003 expressly retains the common law exceptions to the hearsay rule for specified categories of proof. The preserved common law exceptions are: public information evidence of reputation res gestae (e.g. statements linked to the facts in issue that are an integral part of the events) confessions admissions by agents statements in furtherance of a common enterprise expert evidence See Practice Note: Admissibility of hearsay—preserved common law exceptions. The CJA 2003 also allows the admission of a previous inconsistent statement, i.e. a statement made by a witness before giving evidence that conflicts with their testimony at trial. Moreover, the Act makes express provision for other earlier statements by witnesses, e.g. statements used to rebut an allegation of recent...