Legal Practice Notes

This Practice Note outlines the without prejudice principle governing the admissibility of material arising from bona fide settlement discussions. It explains when spoken or written exchanges are covered by, or fall outside, that principle. It also considers whether pre-action exchanges can carry a ‘without prejudice’ status, the effect of expressly marking communications ‘without prejudice’, and how the rule applies across a chain of correspondence. For broader guidance on resolving disputes, see: Settlement and settling disputes—overview. Without prejudice rule The ‘without prejudice’ rule is the policy that statements or admissions made by disputing parties with a view to reaching a resolution are treated as without prejudice to liability, and are therefore inadmissible as evidence in civil proceedings. The policy is strongly supported in law to encourage parties to negotiate a settlement. It is not absolute; however, the contours of the exceptions can be hard to...

This Practice Note examines when the ‘without prejudice’ rule does not apply. Certain ‘without prejudice’ exchanges become admissible: for example, proposals bound up with conduct amounting to unambiguous impropriety, such as blackmail, lose the shield of inadmissibility in court. The exceptions are set out with examples, together with the notion of waiver of ‘without prejudice’ protection. Illustrative examples accompany the discussion, as does the idea of waiving such protection. These are outlined with examples. Exceptions to without prejudice protection There are seven recognised situations where the policy against admitting ‘without prejudice’ communications yields. However, practitioners should note the prevailing judicial view that courts ought to be ‘slow to lift the umbrella unless the case for doing so is absolutely plain’ ( Lord Hope in Ofulue v Bossert at para [2]). In the same case, Lord Walker observed: ‘ I would not restrict the...

The Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017 ( MLR 2017), SI 2017/692, constitute part of the UK’s overarching anti-money laundering ( AML), counter-terrorist financing ( CTF) and counter-proliferation financing framework, as amended. The MLR 2017 prescribe administrative obligations that operate alongside the criminal limbs of the AML, CTF and counter-proliferation financing regime found in the Proceeds of Crime Act 2002 ( POCA 2002), the Terrorism Act 2000 ( TA 2000) and a range of sanction measures. Some provisions intersect with that legislation. Since June 2017, the MLR 2017 have been amended on several occasions. This Practice Note reflects the MLR 2017 in their amended form. For further information on POCA 2002, TA 2000 and counter-proliferation financing, refer to the Practice Notes: Proceeds of Crime Act 2002;...

The handling of personal data for policing objectives is expressly and specifically governed by Part 3 of the Data Protection Act 2018 ( DPA 2018) and operates as a separate and distinct regime from the general processing of personal data under the UK General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR). DPA 2018, Pt 3 applies to those competent authorities that process personal data for ‘law enforcement purposes’. It includes processing for preventing, investigating, detecting or prosecuting criminal offences, or carrying out criminal penalties, and encompasses safeguarding against, and preventing, threats to public security. DPA 2018, Pt 3 transposed the EU Law Enforcement Directive ( EU) 2016/680 ( EU LED) into UK law. The Information Commissioner’s Office ( ICO) has issued guidance specifically on duties under DPA 2018, Pt 3, which is essential reading for advisers in this field. The ICO...

What is the difference between a sub-sale and an assignment? Sub-sale A sub-sale arises where A agrees to sell a property to B, but before B completes with A, B enters a separate contract to sell that same property on to C. Thus, there are two sale contracts concerning the single property ( A– B and B– C). Completion can be achieved by: a single transfer from A straight to C, at B’s direction; or two transfers, first A to B, then B to C. Assignment An assignment occurs where A contracts to sell to B, and B assigns to C the benefit of that contract (but not its burdens). Completion then proceeds by one transfer only, from A to C. Assignment should be distinguished from novation. With a novation, A contracts with B, who then transfers (novates) both rights and obligations to C. This requires A’s consent. The effect is that C...

Intention Intention denotes the result the defendant seeks. Offences are often categorised as ones of basic intent or specific intent. The Court of Appeal has labelled this division elusive. Even so, the Court offered guidance on specific intent: crimes of specific intent require proof of purpose or consequence, and include, though are not limited to, cases where the objective extends beyond the actus reus, sometimes called ulterior intent. The Court also endorsed the analysis that a line can be drawn between (i) intention considered in light of the actor’s purposes and (ii) intention viewed apart from those purposes. In some instances a general intent accompanying the act is all that is needed to constitute the offence; in others, in addition to that general intent, there must be a specific intent linked to the purpose for which the act is done. Put plainly, specific intent offences require an...

Note— to verify whether notification thresholds in Serbia and across the globe are satisfied, please refer to Where to Notify. 1. Have there been any recent developments regarding the Serbian merger control regime and are any updates/developments expected in the coming year? Also, are there any other ‘hot’ merger control issues or points of interest regarding the Serbian merger control regime? Stronger enforcement is anticipated, as the President of the Commission for Protection of Competition has delivered several public statements pointing clearly in that direction. In the area of merger control, the overall level of work carried out by the Commission for Protection of Competition (the Competition Commission) has grown during the past year, with a visible uptick in activity. Beyond announcing the planned adoption of a series of by-laws, the authority has been engaged in preparing the draft of the new Law on...

Cash is commonly offered as security for a loan In commercial lending, cash is frequently taken as collateral in a range of scenarios: as part of a comprehensive security package covering the entirety of a company's assets where the borrower is required to ring-fence specified sums for defined purposes (eg a mandatory prepayment account in acquisition finance, a rent account in real estate finance, or a blocked collection account in receivables finance transactions) in transactions involving a special purpose company where the lender wishes to control the cash flow through the business (eg in project finance) in derivatives transactions, cash posted to central counterparties as financial collateral to cover exposures to their members and/or as cash cover for a bank guarantee or as collateral for a letter of credit This Practice Note outlines the principal issues that arise when taking security over cash deposits held in a bank account. The bank...

This Practice Note outlines the legal powers to search premises and property during a criminal inquiry in Scotland. It further considers the scope for challenging search warrants in Scottish criminal investigations. For guidance on obtaining warrants issued by the criminal courts in England and Wales, see the following Practice Notes: Obtaining and executing a search warrant under PACE 1984; Obtaining excluded material and special procedure material under PACE 1984; Search of premises; and Seizure and retention of property. The principal powers to search premises and property in Scotland fall into these categories: under the terms of an arrest warrant by consent where urgency dictates under the authority of a search warrant Search under the terms of an arrest warrant Where the Crown decides to bring proceedings on either summary complaint or petition, the terms of the complaint or petition itself will grant...

A revised edition of the Chancery Guide referenced in this Practice Note was issued on 5 September 2025. For more, see LNB News 05/09/2025 57— September 2025 update to Chancery Guide and the related Practice Note. As this Practice Note is archived, paragraph references to the Chancery Guide have been taken out to avoid becoming outdated. ARCHIVED: This archived Practice Note provides guidance on witnesses giving evidence remotely via video-conferencing in civil proceedings. It is not updated and is supplied for background purposes only. For wider information on remote hearings in civil proceedings, including video-conferencing under CPR PD 32, Annex 3, see the Practice Notes: Witness evidence—the mechanics of giving evidence at trial; Remote and hybrid hearings in civil proceedings; and the Checklist for remote and hybrid hearings in civil proceedings. Depending on the court in which your matter is...

This Practice Note reviews the key issues when seeking to enforce a judgment of the courts of England and Wales beyond the jurisdiction (with Scotland and Northern Ireland treated as outside the jurisdiction). It outlines the enforcement regimes that may apply in a particular country and examines how those regimes may define ‘judgment’ differently. For simplicity, references to England and Wales/ English/ Welsh are shortened to England and English in this Practice Note. General considerations When enforcing an English court judgment outside the jurisdiction, there are several practical points to address: whether a reciprocal enforcement regime (ie a formal arrangement) exists with the country where enforcement is sought: for guidance on the possible regimes, see: Enforcement regimes below note that different regimes may use different terminology for what...

The framework of the people with significant control ( PSC) regime The people with significant control ( PSC) regime, effective from 6 April 2016, is set out in Part 21A of the Companies Act 2006 ( CA 2006), as modified by sections 81–83 and Schedule 3 of the Small Business, Enterprise and Employment Act 2015, and sections 44, 51 and Schedule 2 of the Economic Crime and Transparency Act 2023 ( ECCTA 2023). Created to confront the opacity of corporate ownership—where historically only the legal, and not always the beneficial, shareholder was recorded—the PSC register provides clearer and more current details of who ultimately owns and controls companies and other entities. This information is publicly accessible on the central registry kept at Companies House. It informs investors when considering whether to invest in a company and also assists law enforcement bodies with money...

Background and framework Purpose of a provisional damages award When the court grants a once-and-for-all lump sum, that award is meant to address losses already suffered and those expected ahead. Where a claimant’s prognosis remains uncertain, the court is empowered to order provisional damages to avert injustice to either of the parties. If there is a risk that the claimant’s condition will deteriorate, fixing compensation by reference only to their current position could treat the claimant unfairly, leaving them under-compensated should their health decline. At the same time, it would be unjust to the defendant to make a lump sum in respect of a possible future condition that might never develop. In addition to the power to make a periodical payments order, the court also has the ability to grant provisional damages so as to take account of future imponderables. In particular, that power ought to be...

This Practice Note addresses the following torts: misfeasance in public office malicious prosecution of civil or criminal claims the tort of abuse of process For guidance on the procedural route to strike out a strategic litigation against public participation ( SLAPP) claim, see Practice Note: Strike out—strategic litigation against public participation ( SLAPP) ( CPR 3.4(2)(d)). For guidance on other torts, see the following Practice Notes: The different torts—property, people and animals Vicarious liability and multi-party torts For negligence claims, see Practice Note: Negligence—key elements to establish a negligence claim and related content. For practical guidance on negligence, nuisance and breach of statutory duty, see: Tort and negligence claims—overview. For guidance on pursuing and defending claims against professionals, see: Professional negligence claims—overview. Misfeasance in public office The tort of misfeasance in public office typically applies where a public officer exercises, or fails to...

Certainty In order for a settlor to establish a private express trust, the three certainties must be present. These are: certainty of words — known as certainty as to the settlor’s intention to create a trust, with the trust property intended to be kept separate from the trustee’s other property certainty of subject matter — known as certainty as to the property to which the trust is to attach certainty of objects — known as certainty as to the persons or ‘objects’ who are intended to benefit Charitable purpose trusts differ from express trusts for the benefit of persons in relation to the three certainties only, in that they do not need to satisfy the certainty of objects, so long as there is a general charitable intention. Certainty of intention of the settlor to create a trust The requirement of intention is met where there is sufficient evidence showing that the...

The offence of possession of an offensive weapon in a public place Under section 1 of the Prevention of Crime Act 1953 ( PCA 1953), it is unlawful to carry an offensive weapon in a public setting without lawful authority or a reasonable excuse. The case may proceed in the magistrates’ court or the Crown Court. Where it appears that the magistrates’ sentencing powers are inadequate, they will refuse jurisdiction... Elements of the offence To secure a conviction under PCA 1953, s 1, the prosecution must establish that the defendant: has with them in a public place an offensive weapon without lawful authority or reasonable excuse Has with them The prosecution must show the defendant was in possession of the item. However, the phrase ‘has with them’ goes beyond simple possession or control. The courts have determined it means ‘knowingly has with them’,...

Letters of request received from foreign courts This Practice Note explores letters of request issued by overseas courts to gather evidence for cross border disputes within their own jurisdictions. Such requests are progressed when a foreign legal team or party instructs solicitors in England to act on their behalf in making the request. It addresses matters that may emerge in the foreign jurisdiction as well as those arising before the English courts. The authority of the English courts to assist is contained in the Evidence ( Proceedings in Other Jurisdictions) Act 1975 ( E( POJ) A 1975), and the procedure to be followed is set out in Section II of CPR 34 from CPR 34.16 onwards. The guidance in this Practice Note applies whether or not the foreign state is party to the Hague Evidence Convention. For guidance on: questions of privilege or...

This Practice Note This Practice Note sets out the factors the court must take into account when considering an application for a non-molestation order under Part IV of the Family Law Act 1996 ( FLA 1996). It outlines who may seek a non-molestation order and identifies who qualifies as associated persons for the purposes of FLA 1996, Pt IV. It also addresses what is meant by molestation Under the Family Law Act 1996 ( FLA 1996), a non-molestation order is an injunction restraining a person (the respondent) from molesting another individual who is associated with the respondent, or a relevant child The court may make a non-molestation order: where an application has been brought (either within other family proceedings or without any other family proceedings being issued) by a person associated with the respondent; or in any family proceedings to which the respondent is a party, if the court...

Such agreements are concluded between an aircraft manufacturer (the seller) and a customer (the purchaser). In the majority of situations, the customer will be an airline or an operating lessor, although the purchaser can equally be a different entity, such as a governmental body. The terms and conditions of aircraft purchase agreements are commonly kept confidential as between the aircraft manufacturer and the customer and are seldom made public. The bulk of those provisions will typically not be disclosed to any financier of the customer, even where that financier is providing the customer with funding in relation to an aircraft to be acquired pursuant to the terms of that purchase agreement. An aircraft manufacturer will generally have a standard form purchase agreement that it enters into with all of its customers. Nevertheless, particular commercial terms are negotiated between the parties, and letter...

This Practice Note considers why negative pledge clauses are adopted in commercial deals the implications of breaking negative pledge terms how negative pledges are treated within the framework of security and quasi-security principal points to address when preparing a negative pledge provision Where appropriate, it signposts relevant provisions in Precedent: Facility agreement (term loan): single company borrower—bilateral—with or without security or a guarantee and the Loan Market Association ( LMA) investment grade multicurrency term facility agreement (the LMA facility agreement), available to LMA members on the LMA website. What is a negative pledge? A negative pledge is a contractual undertaking, typically found in a facility agreement, that prevents or restricts the promisor from creating encumbrances over its assets in favour of a third party. It can also bar the borrower from entering into other arrangements that stop short of granting a full security interest but produce a similar outcome (for...