Legal Practice Notes

Civil justice reform Refer to our Practice Note, Civil justice reform in Scotland—virtual hearings and electronic submission of documents, for direction on the present rules and practice in the Scottish civil courts concerning remote hearings and the electronic signing, sending and lodging of documents. This Practice Note explains how to commence a civil appeal in the Sheriff Appeal Court in Scotland. For guidance on: other aspects of appeals to and in the Sheriff Appeal Court, see Practice Notes: Introduction to the Scottish Sheriff Appeal Court—which considers the court’s jurisdiction, the categories of case it may hear, and whether permission to appeal is needed Chapter 7 procedure in the Scottish Sheriff Appeal—which addresses the management of an appeal before three Appeal Sheriffs ( Chapter 7 procedure) ...

Purpose and aims of public inquiries Public inquiries are typically convened to scrutinise, in depth, events that trigger widespread concern. They fall into two broad categories: statutory inquiries—constituted under the Inquiries Act 2005 ( IA 2005) or other statutory powers available to Parliamentary Commissioners, local authorities, regulators and similar bodies, and non-statutory inquiries—such as those initiated under the royal prerogative to form a Royal Commission Section 44(4) of the IA 2005 expressly preserves the Sovereign’s ability to establish a Royal Commission, and also safeguards any power of a Minister or other person—whether arising from statute or otherwise—to institute an inquiry outside the framework of the Act. Depending on the applicable procedure, inquiry hearings may proceed in public or in private. Lord Justice Salmon, who chaired the 1966 Royal Commission on Tribunals of Inquiry, remarked that secrecy tends to swell the volume of evidence while...

Post-1 October 2013 From 1 October 2013, section 69 of the Enterprise and Regulatory Reform Act 2013 ( ERRA 2013) took effect. For workplace accidents after that date, civil liability no longer stems from breach of a statutory health and safety duty unless the specific regulation provides for it. Consequently, practitioners must advance claims in negligence. Although it is no longer appropriate to plead a claim purely on a regulatory breach, claimant practitioners are likely to continue citing the relevant statutory provisions as expressing the expected standard of care in workplace environments. In many instances, such regulations can be referenced in statements of case to outline procedures for identifying and evaluating risk, and for implementing controls in light of those assessments. Accordingly, claims should be grounded in negligence, with any breach of regulation relied upon as evidence of that negligence. The claimant will (usually) need to...

This Practice Note considers some of the defences to a claim for restitution for unjust enrichment This note reviews selected defences to restitutionary claims grounded in unjust enrichment. It should be read alongside Practice Note: Unjust enrichment—elements of the claim, which outlines the legal background and the core criteria for making out such a claim. As that Practice Note makes clear, the material here is intended to give only a high-level grasp of a notably intricate branch of jurisprudence, offering outline guidance rather than detailed analysis. When confronted with an allegation seeking restitution for unjust enrichment, several defences may arise. In broad terms, they apply in circumstances where restoring the claimant to the pre-enrichment position cannot be achieved, or where ordering such restoration would itself be inequitable. Accordingly, several potential responses warrant consideration whenever such a claim is pursued......

Property joint ventures are commonly set up in three formats: contractual agreement partnership limited liability company Contractual agreement As the most straightforward variety of joint venture, a basic project management agreement, development management agreement, or collaboration agreement can often be the suitable path. Typically, one party provides a service in return for a pre-agreed share of any eventual profit. Common forms of collaboration agreement include asset, property, or investment management agreements......

A central aspect of Parliamentary privilege is that each House holds the right to direct its own procedures. Numerous rules and conventions influence how each House operates. Some of these are written and are known as Standing Orders. Standing Orders are written rules created by each House to govern its own proceedings. They cover, for instance, how business is scheduled and conducted, the conduct of MPs and members of the Commons or Lords during debates, and provisions concerning committees. Erskine May: Parliamentary Practice is regarded as the definitive authority on parliamentary procedure. It sets out observed ‘rules’ within each House, including those relating to Standing Orders. Standing Orders of the House of Commons The Standing Orders of the House of Commons set out much (though not all) of the procedure and practice of the House. Standing Orders do not always mirror...

This Practice Note discusses: the aim and customary representations found in a leveraged senior facilities agreement ( SFA), and how they vary from those in an investment‑grade facility agreement typical sponsor approaches to narrowing the scope of those representations the usual timing for delivering representations the function of, and standard information undertakings in, a leveraged SFA the role of, and common general undertakings within, a leveraged SFA how ‘baskets’ are used to moderate the effect of the general undertakings the rationale for, and usual events of default The material here proceeds on the basis of an SFA broadly aligned with the senior multicurrency term and revolving facilities agreement for leveraged acquisition finance transactions available to members on the LMA website ( LMA Leveraged SFA). For details on other components of a leveraged finance facilities...

This Practice Note provides a checklist in the form of a high-level summary of the key anti-avoidance rules that may apply to restrict the tax deductibility of loan interest for a corporate borrower within the charge to UK corporation tax. They include: the loan relationships regime-wide anti-avoidance rule ( RAAR) the unallowable purpose rule the rules recharacterising interest as a distribution the corporate interest restriction the transfer pricing rules the hybrid and other mismatches rules non-market loans the general anti-abuse rule For these purposes, assume the borrower and lender are unrelated and deal strictly on a commercial arm’s length basis in relation to a bilateral or syndicated loan arrangement......

THIS PRACTICE NOTE APPLIES TO TRUSTEES OF ALL PENSION SCHEMES A power is the legal capacity granted to a person to manage or dispose of property that is not their own. In trust-based occupational pension schemes, trustees are typically given such powers, and legislation also bestows powers upon them. These powers provide trustees with discretion and choice, and in the trust context they are usually classified as administrative or dispositive. Dispositive powers commonly seen in pension schemes cover: Early retirement and ill-health early retirement Death-in-service benefits Increases to benefits, including annual pension increases and revaluation of deferred pensions Acceptance of transfers into the scheme Application of any surplus on winding-up Schemes generally also contain amendment powers concerning the trust deed and rules. Sometimes a power is vested solely in the trustee; others are exercised jointly with the employer or depend on the employer’s consent. The exercise of powers is subject to...

The elements of establishing a res judicata To rely on res judicata, it must be shown that: the underlying ruling, whether domestic or foreign, was a judicial determination in the relevant sense it was actually pronounced the tribunal possessed jurisdiction over the parties and the subject-matter the decision was: final on the merits it resolved an issue raised in the later proceedings, and the parties are the same or in privity, or the earlier ruling was in rem ( Marginson v Blackburn and Leong v Hock Hua Bank Bhd [2008] 3 MLJ 340 (not reported by Lexis Nexis®) and Chong v Leow [2008] 6 MLJ 781 (not reported by Lexis Nexis®)) Res judicata—what is a 'judicial...

Key issues in operation and maintenance ( O& M) contracts for renewable energy projects Overview Operation and maintenance ( O& M) of renewable energy projects is an essential element in delivering a project that succeeds. While capital expenditure often represents the majority of spend, O& M still meaningfully shapes the levelised cost of electricity, a cornerstone of project economics. A robust O& M approach can sharpen competitiveness and strengthen the investment case for renewable energy projects. The nature of O& M services differs across technologies; for instance, photovoltaic ( PV) solar involves a scope, risk profile and practical considerations that are distinct from offshore wind. Contractual terms also vary by jurisdiction and according to the maturity and depth of the relevant services market. As more renewable assets reach operation and scale up, the O& M sector grows in size and...

This Practice Note examines how a landlord may recover the expense of taking steps to enforce tenant covenants, including pursuing rent arrears, serving a notice under section 146 of the Law of Property Act 1925, or obtaining a determination on service charge liability. It considers the effect of typical lease provisions obliging tenants to meet costs, and the ability of the court or tribunal to direct that the landlord’s costs of proceedings are not recoverable as service charges under section 20C of the Landlord and Tenant Act 1985 ( LTA 1985), or as administration charges under the Commonhold and Leasehold Reform Act 2002 ( CLRA 2002) Options for cost recovery Depending on the circumstances, landlords may use several routes to recover costs. These include: Costs orders made in proceedings. See: Costs orders—overview and First-tier Tribunal and Upper...

What is prepayment finance? Prepayment finance, a form of commodities finance, describes arrangements where buyers fund commodity producers by paying ahead of delivery. This well-established model channels funding directly to buyers or traders of goods and commodities, and indirectly to producers and exporters. Under this structure, a buyer—often called the offtaker—makes an advance to the producer or exporter, with that prepayment backed by a separate loan provided to the offtaker by a lender, typically a bank or a syndicate of banks. Such structures are advantageous to: producers, as they can obtain credit that would otherwise be unavailable through the conventional banking system; and buyers, as the financing enables them to secure long-term supply agreements with producers in return for providing funds. They are especially valuable where the producer operates in jurisdictions with exchange control regulations or tax regimes that prohibit or penalise direct lending to...

Convening hearing Under section 896 of the Companies Act 2006 ( CA 2006), the court may require that a meeting of creditors, or any class of them, or of members, or any class of members, be called in whatever manner it directs. A request to convene such a meeting can be made by the company itself, any creditor or member, or, if the company is in winding up or administration, by its liquidator or administrator. Where a scheme is proposed within 12 weeks of a moratorium under the Corporate Insolvency and Governance Act 2020 ( CIGA 2020), those holding any moratorium debts and any pre-moratorium debts for which there was no payment holiday during the moratorium effectively possess a veto over the scheme: the court must not approve a scheme that contains provisions relating to such creditors without their agreement (see Practice Note:...

Jurisdictions whose legal frameworks acknowledge trusts are generally those that stem from or have adopted English law and the principles of equity. These encompass the British Overseas Territories (including the Cayman Islands, British Virgin Islands, Bermuda and Gibraltar), together with the Crown Dependencies of Jersey, Guernsey and the Isle of Man. Infrastructure and regulation Their appeal for trust and corporate services does not rest solely upon having an appropriate legal framework. They provide high-calibre professional and fiduciary services, allied with suitable expertise and a high degree of regulation and governance. Each jurisdiction maintains a supervisory authority responsible for overseeing the finance sector, including the Cayman Islands Monetary Authority, the Bermuda Monetary Authority, the British Virgin Islands Financial Services Commission, the Guernsey Financial Services Commission, the Jersey Financial Services Commission and the Isle of Man Financial Services Authority. See Practice...

A court is required to hand down a life sentence to any offender aged 21 or above who is found guilty of murder, excluding related crimes such as attempted murder or conspiracy to murder. This obligation arises because, in such cases, the penalty is fixed by law. The same principle equally applies to any other offence for which the sentence fixed by law is life imprisonment. If the offender was over 18 when the offence occurred but under 21 at the date of conviction, the corresponding sentence is custody for life in lieu of a life sentence. Where a defendant is convicted of murder having been under 18 at the time of the offence, the proper sentence is detention at His Majesty's pleasure. Fixing the tariff for mandatory life sentences When imposing a life sentence, the court must make a whole life order or...

This Practice Note sets out the practical measures a business can use to ensure its standard-form terms and conditions are successfully incorporated into both contracts and agreements. It offers direction on securing the inclusion of one party’s standard terms and conditions within a contract, on how to succeed in the battle of the forms, and on resisting efforts by the counterparty to import their own standard terms and conditions into the agreement. See also: Effectively incorporating standard terms and conditions—checklist. For guidance on the purpose, benefits and drawbacks of using standard terms and conditions, see Practice Note: Standard terms and conditions—advantages and disadvantages......

An early warning of financial difficulty is commonly a breach of covenants by the business. Lenders may consent to a straightforward waiver to remedy a short-term dip in performance, or it may indicate the prospect of a broader restructuring. It is vital to review how frequently covenants are tested and, if the company is unlikely to meet the next test, seeking a covenant waiver could be sensible. Options A covenant waiver or reset is a milder step than the following options: equity injection (in exchange, the equity provider typically requests a covenant holiday or a relaxation of covenants) (see Practice Note: New money and equity injections in a restructuring situation) sale of non-core assets refinancing by new lenders debt restructuring (see Practice Note: Debt waivers, extending maturity and debt rescheduling) debt for equity swap (see Practice Note: Debt for equity...

What are exclusion clauses Unlike certain exclusion or exemption terms used in general contracts, an exclusion clause in an insurance policy is seldom intended to remove, curb, or cap a party’s legal liability. Instead, such provisions delineate the edges of the insured risk by specifying what is not insured under the policy. Whereas insuring provisions are often drafted broadly for ease, exclusions operate to pare back the breadth of cover. Exclusion clauses must be differentiated from other policy terms, including conditions precedent and warranties. The role of an exclusion is to identify, from the outset, those particular perils that insurers will not cover in any circumstances under the policy. Conditions precedent and warranties, by contrast, only influence the extent of insurance when the insured breaches them. Under the Insurance Act 2015, a breach of a condition precedent or warranty can result in the...

A covenant operates as a type of contract. Under the doctrine of privity, contractual rights and obligations attach only to the contracting parties, excluding third persons. Yet, with land-related covenants, property law can permit enforcement by, and sometimes against, individuals beyond the original parties. The applicable principles are: in the majority of instances, the benefit of both restrictive and positive covenants passes to successors in title, as it ‘runs with the land’ at common law and in equity subject to specific conditions, the burden of a restrictive covenant runs with the land in equity alone (and so can be enforced against successors in title), whereas the burden of a positive covenant does not run with the land (but see Statutory exceptions below) This inability of positive covenant burdens to run with the land is widely viewed as a significant shortcoming in English property law. One cannot compel...