Legal Practice Notes

In arbitrations overseen by a three-member tribunal, there are occasions when the arbitrators cannot agree unanimously on the merits or on key issues such as jurisdiction. In those situations, under the Arbitration Act 1996 ( AA 1996) and the principal arbitration rules, the tribunal may issue its award by majority What is the value of a dissenting opinion? A dissenting opinion does not, by itself, provide a basis for any challenge to or appeal from an arbitral award unless the parties have stipulated, whether by agreement or by choosing particular arbitration rules, that the award must be unanimous. That said, a dissent can still assist a party dissatisfied with the outcome, for example: in the context of a challenge or appeal to an arbitral award, a dissenting opinion may be admissible as evidence on procedural matters (eg, B v A — see News Analysis: What is the...

Practice Note This Practice Note outlines the principles governing costs in children proceedings, across private and public cases alike, and identifies the restricted circumstances in which a costs order might be made. Generally, it is rare indeed for the court to impose a costs order in children proceedings; however, these proceedings still fall under the overarching rule that the court may, at any time, make such order as to costs as it considers just in the circumstances......

Practice Note This Practice Note serves as a primer on facility agreements (loan agreements) for readers starting out in lending. It outlines the typical elements of a bilateral, committed facility agreement for a corporate borrower and signposts further reading. For a fuller introductory overview of lending transactions, see Practice Note: Introductory guide to lending, and for starter material on drafting and negotiating a facility agreement, see Practice Notes: Negotiation guide—facility agreement, How to draft and negotiate a facility agreement and Drafting techniques and contract language. Where relevant, it flags provisions in Precedent: Facility agreement (term loan): single company borrower—bilateral—with or without security or a guarantee and in the Loan Market Association ( LMA ) investment grade multicurrency and revolving term facilities agreement with/without observation shift (the LMA facility agreement) (available to LMA members on the LMA website). Remember, LMA facilities agreements are intended for...

This Practice Note serves as a primer on corporate and company law (together ‘ Corporate’) for trainee solicitors and anyone newly entering the Corporate practice area. It concentrates on foundational ideas and directs you to Lexis+ resources for more detail on each subject. You can also use the Overviews within each subtopic, which summarise the law on specific issues or stages of Corporate transactions and include links to relevant material within that subtopic to aid navigation. When viewing subtopics in Corporate ‘ Topics & Tasks’, you will find these Overviews alongside further practice area content. If this introductory guide does not address a point, browse additional materials via the Topics tab or the Topics dropdown menu. To read about the team of experienced lawyers and expert authors who contribute to the Corporate module, see the Corporate experts...

In breach of contract disputes, the central enquiry is whether the term said to be broken empowers the innocent party to: terminate the contract for breach and recover damages (or choose to affirm the contract, notwithstanding the breach, and still pursue damages), or seek damages The outcome hinges on whether the relevant term operates as a condition or a warranty, or whether the character and effects of the breach are sufficiently grave to amount to a repudiation of the agreement. This is the purpose of the classification of terms in contractual disputes. For guidance on distinguishing terms from representations, and on when and how express and implied provisions are incorporated into a contract, see Practice Notes: Contract interpretation—when is a statement a representation or a contractual term? Contract...

This Practice Note offers an overview of the key legal and practical elements concerning a company’s constitution, and points to related commentary and precedents. What is a company’s constitution? Under section 17 of the Companies Act 2006 ( CA 2006), a company’s constitution comprises: the company’s articles of association, and any resolutions and agreements impacting the constitution (see What are ‘resolutions and agreements’ affecting a company’s constitution? below) The CA 2006 definition is not exhaustive and, per sections 29–32, also encompasses other constitutional documents, including: the certificate of incorporation and any certificate on a change of name a current statement of capital (or, for a company limited by guarantee, a statement of guarantee) any court orders or enactments that modify the constitution or approve a compromise, arrangement, reconstruction or...

Leapfrog appeal A leapfrog appeal is one that goes straight to a higher appellate court than the one that would typically hear it. If an appeal would normally be dealt with in the County Court or High Court, a leapfrog sends it to the Court of Appeal. Where an appeal would usually be considered by the Court of Appeal, a leapfrog takes it to the Supreme Court ( UKSC). For more, see Practice Notes: Starting an appeal—destination of civil appeals— Leapfrog appeals—can my appeal be assigned to the Court of Appeal? and Starting an appeal—destination of civil appeals— Leapfrog appeals—can my appeal be assigned to the Supreme Court? This Practice Note gives guidance on the authority and procedure for bringing a leapfrog appeal. For wider guidance on appeals, consult: Starting an appeal—general provisions Starting an...

Cape Town Convention The Convention on International Interests in Mobile Equipment (the Convention), alongside the related Protocol to the Convention on Matters Specific to Aircraft Equipment (the Protocol), together more widely known as the Cape Town Convention, entered into effect on 1 March 2006. This Cape Town Convention sets out a harmonised body of rules that govern the creation, safeguarding, ordering and enforcement of specified rights relating to aircraft and aircraft engines. A central feature is the establishment of the International Registry for aircraft objects, through which certain classes of interest can be registered, including the recording of a security interest in an aircraft. It also affords protection to creditors in circumstances of default or where insolvency may then arise......

Traditionally, the UK’s corporate governance system has concentrated on listed companies. A key pillar of that system, the UK Corporate Governance Code ( UKCG Code), applies to companies with a listing of equity shares in the equity shares (commercial companies) category, or in the closed-ended investment funds category. However, the good governance principles it advances also matter for other companies, especially AIM companies and large private companies. These organisations may elect to adopt the UKCG Code’s principles and follow a ‘comply or explain’ approach, although there is no obligation to do so, and they may instead select an alternative governance code that better fits their circumstances. A framework designed specifically for large private companies has been taking shape slowly, and in a somewhat ad hoc manner, over many decades. The development of a corporate governance framework for large private...

This Practice Note addresses the issues to weigh up when asking counsel to conduct trial advocacy, covering the criteria to bear in mind and the contents required in the brief for counsel, together with the practical points to include within the brief provided to counsel... When to brief counsel If you are uncertain you can devote sufficient time to prepare the matter adequately for trial, or can present it at the trial or possess the necessary rights of audience, you should instruct counsel to conduct the advocacy at trial... In more complex matters, counsel will often have taken part in preparing the case or defence and may have advised on the merits of the claim or defence, settled or drafted the relevant statements of case, and undertaken advocacy at interim hearings. Ideally, the same counsel should conduct the advocacy at the trial......

This Practice Note proceeds on the basis that: National Highways ( NH) is the competent authority and the proposals impact the strategic road network, and the developer controls the pertinent land and has transferred the requisite part to NH (formerly Highway England) so it can carry out the works It is written to reflect the viewpoints of both the developer and NH. See Precedent: Precedent s 278 agreement. Preparatory stages in agreeing a section 278 agreement At the outset, developers must convince NH that the section 278 works serve the public interest. NH must then be assured that measures have been identified to mitigate the development’s effects. For example, typical interventions include pedestrianised crossings, signal-controlled junctions to provide access onto the highway network, roundabouts and one-way systems. NH ordinarily issues the initial draft of the agreement. This promotes consistency across NH’s dealings with various developers and reduces the risk of...

This Practice Note carefully considers the role of pre-construction services agreements ( PCSAs), most commonly applied in two-stage tendering. Many construction schemes are now procured through a two-stage route, which contrasts quite markedly with the familiar single stage tender model. Instead of inviting contractors to submit a price for the works in a competitive tender and then moving straight to a contract with the chosen contractor, many employers (even where a traditional or design and build lump sum contract is still intended) prefer to negotiate with contractors and draw on their input earlier in the procurement process. This alternative method is generally also known as two-stage tendering (see Practice Note: What is two-stage tendering?). The scope of services to be undertaken by a contractor up to the point the building contract is entered into, together with the parties’ contractual framework, is usually governed by a...

This Practice Note was produced with The Access to Justice Foundation. It explains what pro bono costs are and the legislation and CPR provisions that apply. It then outlines key points for handling pro bono costs through proceedings and, in particular, when addressing costs assessment and costs orders. It also lists example contacts who can provide support with pro bono costs. What are pro bono costs? Pro bono costs arise when a party is represented without charge in proceedings. They are treated as ordinary legal costs. They reflect the monetary value of the free legal help, with the amount based on what a fee-paying client would recover. The costs cover any period of free representation and, even where only one lawyer acted pro bono, normal costs can still be sought for fee-paid work. Accordingly, the County Court, High Court and Court of Appeal ( Civil...

The tort of misuse of private information The tort of misuse of private information centres on protecting human autonomy and dignity—the ability to control how details of one’s private life are shared, and the claim to others’ esteem and respect ( Campbell v MGN). Commonly, as in Campbell, the only alleged ‘misuse’ is the unlawful publication, or threatened publication, of personal information to the world at large. The alleged wrongdoer is frequently a media organisation and/or an individual seeking disclosure through the media. A claim may nevertheless be brought where material is circulated more narrowly, if that would unjustifiably interfere with the claimant’s right to respect for private life under article 8 of Part I of Schedule I to the Human Rights Act 1998 ( HRA 1998), which gives effect to rights contained in the European Convention on Human Rights ( ECHR). The tort is not...

This Practice Note provides an introduction to the tort of malicious falsehood. Unlike a defamation claim, a malicious falsehood action does not require proof that the words complained of are defamatory. Instead, the claimant must show the following three elements: the defendant published an untrue statement about the claimant; the publication was malicious; and the statement caused actual pecuniary loss, or the case falls within section 3 of the Defamation Act 1952 ( DA 1952). The tort of malicious falsehood is governed by a mixture of statute and the common law. The relevant statutory provisions are contained in DA 1952, whereas the Defamation Act 2013 ( DA 2013) contains no provisions relevant to malicious falsehood. Malicious or injurious falsehood (sometimes, and confusingly, called 'trade libel') is not concerned with reputation. It is a separate tort from defamation, aimed at the...

This Practice Note sets out the distinction between disclosure and inspection, and considers when that distinction has practical significance. It outlines various methods for inspecting disclosed material and identifies who is entitled to undertake the inspection. It also highlights the types of limits a court may place on inspection of disclosure. Finally, it deals with withholding production on public interest grounds, whether by public immunity certificate or through a closed material procedure. The purpose of inspection Disclosure and inspection are separate concepts, yet they frequently proceed together because, in many matters, once a document is disclosed it is ordinarily inspected by the opposing party to the proceedings. It is uncommon for a party to acknowledge a document is within its control yet oppose inspection under CPR 31.3, unless the party is: relying on a right or obligation to withhold inspection under CPR...

General This Practice Note explains how to carry out the review of documents for disclosure. The exercise involves assessing the compiled documentary material held by your client and determining which items ought to be disclosed. To achieve this effectively, ensure you have in place: strategies to narrow the scope of documents to be checked a dedicated review team clear targets for that team appropriate tools for the task ongoing communication with the client This Practice Note concerns a party’s disclosure obligations under CPR 31 and does not address the disclosure scheme used in the Business and Property Courts. For further guidance, see: Disclosure Scheme ( Business & Property Courts)—overview and Which disclosure rules apply to my claim—flowchart? For general guidance on terminology used in this Practice Note, see Practice Note:...

Rule 9— Setting the scene This Resource Note sets out the principal features of Rule 9 of the City Code on Takeovers and Mergers ( Code) and signposts key materials, commentary and guidance from the Panel on Takeovers and Mergers ( Panel), alongside Lexis+® UK analysis and resources, to provide practical help on interpreting and applying Rule 9. It highlights relevant materials, commentary and guidance from the Panel, and points to Lexis+® UK analysis and resources for practical context. Materials covered in this Resource Note include: the Code’s detailed Notes, explaining the intended approach to implementing the Rules, and relevant Appendices addressing particular issues Practice Statements released by the Panel Executive (the body responsible for day-to-day takeover supervision and regulation) ( Executive), giving informal guidance on how the Executive typically interprets and applies the Code Panel Statements issued by the Panel ( P/ S) and Panel...

Personal Injury—new starter guide This new starter guide forms one of two Personal Injury—new starter guides. It offers a broad, practical overview of personal injury ( PI) practice and signposts readers to further resources. The intended audience is trainee solicitors and anyone beginning work in PI as a distinct practice area. The emphasis is on the principal issues that arise pre-action (ie before court proceedings are issued) when bringing or resisting a PI claim. From the start of a personal injury matter, practitioners should carefully assess several key factors, including the relevant limitation period, the liability points likely to matter in the case, the pre-action protocol to be applied, and the potential funding route available. This new starter guide contains links to other Lexis+® sources and materials that provide more comprehensive information on the subjects outlined. It presents a general...

Claims for historic outgoings and losses generally comprise, primarily, the following: lost financial dependency (see Practice Note: Quantifying damages for dependants—past losses—financial dependency) the worth of services the deceased would have supplied had they remained alive The loss is assessed via a multiplicand/multiplier method. In essence, the court will generally start by identifying the annual value of the loss (the multiplicand), before applying an appropriate multiplier. By way of a straightforward illustration: if the deceased gave the dependant £100 each month as an allowance (£1,200) and also delivered DIY help valued at £100 per quarter (£400), the yearly multiplicand would come to £1,600. Calculating the annual value to the dependants of the loss of the deceased’s services Typically, a claim of this kind is advanced where, prior to death, the deceased supplied the dependant with services that carry a quantifiable commercial value. In the same way as a claim for...