Legal Practice Notes

This Practice Note sets out guidance on witness summonses. It explains when a witness summons can be used, whether the court’s permission is needed and, if so, how to apply for it. It also addresses how to serve the summons, what to do if a witness does not comply, conduct money and payment for summoned witnesses. Depending on the court where your case is proceeding, further provisions may apply—see: Court specific guidance. What is a witness summons? A witness summons is issued by the court under CPR 34.2 requiring a witness to: attend court to give evidence on the date fixed for a hearing or a court directed date ( CPR 34.2(1)(a) and CPR PD 34A, para 1.1), or produce documents to the court either: on the date fixed for the hearing ( CPR...

ARCHIVED: This archived Practice Note explores service of witness statements, addressing when and how to file and serve factual witness evidence, including simultaneous exchange and methods of service. Timing is examined in detail, in particular including the sanction for non-compliance under CPR 32.10, how to seek an extension of time and the available steps you can take when you have breached your obligation (such as applying for permission to rely on a witness’s oral evidence where the statement was served late and/or seeking relief from sanctions). Practical steps on how to avoid default are also provided and explained. It is not maintained and is for background information only. For guidance on the court’s powers to make orders for the exchange of witness statements, see Practice Note: Courts’ power to manage factual evidence. Serving witness statements If you intend to rely on witness evidence, it must be...

Although a court may determine the construction of a Will, including its language and terms, the guiding principles do not encourage contentious proceedings. The prevailing method was illustrated in Re the trusts of the will of Harold John Goddard: Goddard (as trustees of the will dated 11 February 2008 of Harold John Goddard) v Hunter (as co‑trustee of the will dated 11 February 2008 of Harold John Goddard). In his introduction, Master Kaye noted that this was a Part 8 claim to construe a Will, issued after 18 months of correspondence between the parties. Despite aspects of that correspondence, the matter was not hostile litigation, but akin to what was formerly termed a construction summons. Counsel for both sides treated their function as assisting the court, presenting arguments for and against the rival interpretations of the Will’s...

This Practice Note provides guidance on the meaning, application and significance of frequently used expressions in exclusion and limitation of liability clauses in commercial agreements, including the following terms: abandonment wilful misconduct deliberate default It reviews how case law has interpreted these expressions and offers pointers for parties when drafting and negotiating commercial agreements. What is an exclusion or limitation of liability clause? An exclusion clause is a contractual provision that specifies what liability is excluded, sometimes described as an exemption clause. A limitation of liability clause is a contractual provision that sets boundaries on liability. Both types of clauses are controlled by statute and the common law. For an overview of those controls, see Practice Note: Exclusion and limitation of liability and for an example of a limitation provision, see Precedent: Limitation of liability clause. What do the terms used in these types of...

Statutory duty to whistleblow Under the Pensions Act 2004 ( Pe A 2004, s 70), those connected with pension schemes must notify the Pensions Regulator ( TPR) of certain legal breaches where there is reasonable cause to think the matter is likely to be of material significance to TPR. This obligation is widely referred to as the duty to whistleblow. For more detail on the breadth of the obligation, see: Who is required to whistleblow? and What needs be reported?, below. The statutory obligation takes precedence over any inconsistent obligations an individual owes (for example, a confidentiality duty to the scheme’s sponsoring employer). Submitting a report to TPR does not infringe such additional, conflicting or existing (eg confidentiality) obligations. Section 103A of the Employment Rights Act 1996 protects employees who make a report to TPR. The scope and application of the duty feature in TPR’s...

This Practice Note sets out how intellectual property and related rights, together with data protection duties, operate in the setting of web crawling, indexing, caching and scraping, viewed from a website operator’s standpoint. An explanation of the terminology The principal concepts of crawling, indexing, caching and scraping are outlined below. Crawling Web crawling is the activity whereby automated programmes (often called ‘bots’, ‘spiders’ or simply ‘web crawlers’) are deployed to traverse and read information across the web. One well-known crawler is Googlebot, which Google uses to copy web pages onto its servers; Google then indexes them (see the section on Indexing) to support searching of the internet. Website operators often provide ‘sitemaps’ (an XML file listing all pages on a site) to assist and enhance search engines’ crawling. Crawlers can also be put to other uses such as ‘scraping’ (see the section on ‘ Scraping’) or...

Liquidation Following enforcement of security by fixed charge creditors for their own benefit, the order of distributions in a winding up is: if liquidation commences within 12 weeks of a moratorium, any unpaid moratorium debts and ‘priority pre‑moratorium debts’ to which no payment holiday applied during the moratorium expenses properly incurred in the winding up (including the liquidator’s remuneration) ordinary preferential debts secondary preferential debts the prescribed part for unsecured creditors (where not disapplied) debts secured by floating charges unsecured debts statutory interest postponed debts (i.e. non‑provable liabilities) return of any surplus to members (subject to adjustment between members) For further details, see Practice Note: Waterfall of payments in liquidation......

Upstream oil and gas ventures established under a licence to explore, develop and/or produce hydrocarbons are typically assembled through multiple contracts, many of which feature arbitration clauses. Such ventures require substantial capital and give rise to long-term projects (and therefore long-running contracts) in which states and businesses hold major stakes. As a result, when disputes arise, mirroring the scale of the investments, they often involve significant amounts and must proceed swiftly to prevent any interruption to production. This Practice Note sets out a typical project architecture, flags the principal contracts, the usual dispute resolution mechanisms they include, and the categories of disputes that may emerge. It also touches on some of the more difficult issues that can arise when resolving these disputes. This Practice Note should be read alongside Practice Note: Arbitration in the energy...

For copyright purposes, the term ‘film’ denotes a recording, on any medium, from which a moving image may by any method be generated. A television programme is protected as a film for these purposes, and the definition is intended to be technology-neutral. This Practice Note examines the copyright protection conferred on films and television programmes themselves as copyright works, and Practice Note: Copyright in film and television: making a new film explores certain matters concerning the types of works (dramatic, literary, musical and artistic works) known as the ‘underlying rights’ that a producer may need to create or be required to licence during the course of making a new film or television production. The legal issues relating to television formats are not dealt with in this Practice Note; instead, see Practice Note: Television format...

In brief The British constitution is uncodified, meaning it does not spring from a single constitutional document or code. It draws on a wide range of written and unwritten sources. Alongside the principal written sources of law in England and Wales—legislation (which has also introduced international and human rights principles into our constitution) and the common law—the constitution also rests on two further unwritten bases within this system: the prerogative, and non-legal constitutional conventions. In addition, on one view the basic or prevailing principle of our constitution, Parliamentary sovereignty, is ultimately grounded in political fact rather than in law. Legislation Legislation is the foremost source of constitutional law. Acts of Parliament may set out detailed constitutional rules, or even pass authority to create them to ministers or to others. Under the doctrine of Parliamentary sovereignty, legislation is traditionally regarded as taking precedence over any other form or kind of...

Guarantees and third party security from individuals Guarantees (see Practice Note: Guarantees) and third party security (see Practice Note: Third party security) provided by individuals are common forms of credit support in financing transactions. For example, in deals involving a corporate borrower, a lender may require the borrower’s directors to give guarantees or offer security. Where the borrower is an individual, the lender may instead seek a guarantee or security from a related family member, such as a spouse, civil partner or a parent... When taking a guarantee or security from an individual, a number of additional considerations arise beyond the general law on guarantees and security. The principal issues are explored in the following Practice Notes: Key issues in taking a guarantee from an individual in a commercial financing context Key issues in taking security from...

This Practice Note This Practice Note sets out the principal administrative duties, including the deadlines for: filing information returns; and remitting tax to HMRC in relation to the categories of payments in section 946 of the Income Tax Act 2007 ( ITA 2007) from which UK income tax must be withheld by the payer (section 946 payments), namely yearly interest, certain IP-rights related payments (including royalties), and annual payments It does not address: the administrative framework for withholding tax: that must be deducted by a person other than a UK tax resident company—in many such instances, the withheld amount is accounted for to HMRC via the payer’s self-assessment return, though in some cases HMRC collects it through direct assessment; or levied on other income types, for example...

Overview This Practice Note outlines the principal distinctions between the UK’s vertical block exemption, the Competition Act 1998 ( Vertical Agreements Block Exemption) Order 2022 ( UK VABEO), and the EU’s Vertical Block Exemption Regulation 2022/720 ( EU VBER). On 1 June 2022, both the UK VABEO and the EU VBER took effect, displacing the earlier vertical block exemption, EU Regulation 330/2010 ( VBER 2010), which had remained part of UK law after Brexit until it lapsed. The UK VABEO is accompanied by the CMA’s Vertical Agreements Block Exemption Order Guidance ( VABEO Guidance), and the EU VBER is accompanied by the Commission’s Guidelines on Vertical Restraints ( Commission Guidelines)......

Opposition proceedings After the Registrar at the UK Intellectual Property Office ( IPO) accepts a trade mark, it appears in the online Trade Marks Journal and becomes available for public scrutiny. There is then a two-month window—extendable to three months on notice to the IPO—during which any interested party can challenge the application. The individual or entity initiating the opposition is termed the opponent. Objections may alternatively be lodged via a third-party observation, and in some cases third parties may receive permission to intervene. The legal framework and process are set out in section 38 of the Trade Marks Act 1994 ( TMA 1994) and in rr 17–21 of the Trade Marks Rules 2008 ( TMR 2008), SI 2008/1797, as amended by the Trade Marks ( Fast Track Opposition) ( Amendment) Rules 2013, SI 2013/2235. The burden of proof rests with the...

This Practice Note explains what constitutes a scheme of reconstruction for tax purposes. Defining a scheme of reconstruction matters because certain group reorganisations only achieve tax neutrality—that is, avoid triggering a tax liability—if they proceed by way of such a scheme. Accordingly, to secure no immediate tax charge, the transaction must be implemented as a scheme of reconstruction in practice. Company reconstructions The core principle is that where a company, or a company’s business, is moved to another company and the acquiring company issues shares to the existing shareholders so they retain an interest in the original undertaking, then, provided specified conditions are met, those shareholders are, for tax, treated as not having disposed of their original shares......

Resource Note This Resource Note summarises the key provisions of Rule 29 of the City Code on Takeovers and Mergers ( Code), which governs requirements for asset valuations. It signposts relevant materials, commentary and Panel guidance, together with Lexis+® UK analysis and resources, to provide practical direction on interpreting and applying Rule 29. Materials covered in this Resource Note include: Practice Statements from the Panel Executive (which undertakes the day-to-day supervision and regulation of takeovers) giving informal guidance on the Executive’s usual interpretation and application of the Code Panel Statements and Panel Instruments issued by the Panel Public Consultation Papers ( PCP) and Response Statements ( RS) from the Code Committee Annual Reports from the Panel addressing wider issues ( Annual Reports) relevant Lexis+® UK resources Rule 29— Setting the scene Code and Lexis+® UK...

This Resource Note summarises the core provisions of Rule 21 of the City Code on Takeovers and Mergers (the Code). It covers the limits on an offeror taking frustrating action in connection with an offer, and the approach to inducement fees and other offer-related arrangements. Rule 21 also mandates that competing offerors are given equivalent information, and that the offeree’s independent directors receive all information supplied to external finance providers in a management buy-out. It signposts relevant materials, commentary and guidance from the Panel on Takeovers and Mergers (the Panel), alongside Lexis+® UK analysis and resources, to provide practical direction on the interpretation and application of Rule 21... Materials covered in this Resource Note include: Practice Statements issued by the Panel Executive (the body responsible for the day-to-day supervision and regulation of takeovers) ( Executive), offering informal guidance on how the...

This Resource Note summarises the key features of Rule 15 of the City Code on Takeovers and Mergers (the Code) and points to pertinent materials, commentary and guidance from the Panel on Takeovers and Mergers (the Panel), together with Lexis+® UK analysis and resources, to provide practical assistance on interpreting and applying Rule 15. Materials included in this Resource Note comprise: detailed notes accompanying the Code ( Notes), which elaborate on the intended implementation of the Rules and relevant Appendices addressing specific issues Practice Statements issued by the Panel Executive (the body that undertakes the day-to-day work of takeover supervision and regulation of the Code) ( Executive) offering informal guidance on how the Executive typically interprets and applies the Code Panel Statements ( P/ S) and Panel Instruments published by the Panel Public Consultation Papers ( PCP) and Response...

This Practice Note forms part of the Share purchase transaction collection. Timing Completion of a share purchase may occur at the same time as signing and executing the share purchase agreement ( SPA), or on a later date. Where completion is conditional, it will take place later (a split exchange and completion). If no conditions apply, exchange and completion happen together. The schedule for post-completion obligations differs by item. Certain steps must be carried out in the days straight after completion (for example, paying stamp duty and submitting forms to Companies House), while other post-completion measures might arise only in specific situations or not at all (for example, pursuing a warranty claim), or might not require the parties’ lawyers to be involved (for example, earn-out consideration instalments paid in line with the payment timetable set out in the SPA). What happens during this phase?...

This Practice Note forms part of the Lexis+® UK Corporate Private equity buyout transaction collection. Drafting the investment agreement In most instances, the private equity investor’s solicitors will produce the initial draft of the investment agreement ( IA). Which precedent agreement to use When choosing an appropriate precedent, the key consideration is whether to use a single-investor or a multiple-investors version (the latter being suitable where a syndicate is involved). Typically, the matters the investor will want the IA to cover as conditions to completion—ie the confirmations required before completion can occur—are that: the acquisition under the share purchase agreement will proceed (so nothing prevents its completion), and funding is available for drawdown ......