Legal Practice Notes

This Practice Note examines the standard of care in professional negligence, rooted in Bolam v Friern Hospital as the touchstone of ‘reasonable skill and care’, and how that test is applied in practice; it also addresses the Montgomery v Lanarkshire Health ‘material risk’ inquiry, the duty to warn, and the role of industry opinion. It surveys practical illustrations across sectors and notes the position of trade unions. Given the wealth of case law in this area, the standard expected of solicitors and barristers is considered separately in Practice Note: Standard of care—solicitors and barristers. The discussion explains how Bolam operates in real‑world settings and where Montgomery informs the scope of warning obligations and the significance of prevailing professional views. Practical application of these principles is shown through sector‑specific examples. Construction Financial services Accountancy Trade unions...

This Practice Note outlines the position under the Pre- Action Protocol for Professional Negligence claims currently in force. Scope of this Practice Note It reviews the Pre- Action Protocol for Professional Negligence claims (the Protocol), covering its use, objectives, the general implications of non-compliance, and how limitation interacts with Protocol compliance. It sets out the principal steps mandated by the Protocol, namely the preliminary notice, the letter of claim, the acknowledgement, the letter of response, and the subsequent commencement of proceedings. The Note also addresses the exchange of information between the parties, the role of experts, alternative dispute resolution ( ADR), and the Protocol’s stocktake provision. For focused guidance on the Protocol from the standpoint of a prospective party to such a claim, see: Practice Note: Professional negligence claims—pre-action protocol—claimant issues Checklist: Professional negligence claims—claimant...

Introduction A production sharing contract ( PSC) sets out the legal relationship between a host state and a private participant (the ‘investor’). Under it, the state engages the investor to undertake oil and gas exploration and production ( E& P) within a specified area and timeframe. Unlike other upstream petroleum arrangements, the host state retains ownership of the in‑situ hydrocarbons. However, to reimburse the investor for the E& P it performs, title to an agreed share of produced oil and gas passes to the investor at a contractually defined delivery point. For a broader overview of alternative upstream models, see Practice Note: Understanding upstream petroleum agreements—concessions, production sharing contracts and service contracts. The key provisions in a PSC Each jurisdiction using a PSC as the foundation for its upstream regime drafts its own model. Typical clauses address: purpose and scope ...

Pre-emption rights on allotment Pre-emption rights on allotment provide shareholders in the company with a means to guard against dilution of their proportional holding in that company, where this might arise from an allotment of shares, the granting of rights to subscribe for shares, or to convert securities into shares, or from a disposal of treasury shares by that company. This Practice Note explains the pre-emption rights applicable to a private company’s allotment of equity securities, as set out in the Companies Act 2006 ( CA 2006) in relevant detail. It is vital to consider with care the breadth of those statutory pre-emption rights fully. A private company must ensure it observes them to the extent that they have not been disapplied, varied, waived, or otherwise excluded expressly. There may additionally be pre-emption provisions contained in a private company’s articles of association or in any...

Practitioners can obtain a grant of probate or letters of administration, either as a personal representative ( PR) or on behalf of the PRs, in two ways: by post using application form PA1P or PA1A online via the HM Courts and Tribunals Service ( HMCTS) portal This Practice Note concentrates on the digital application route. For guidance on applying by post, see Practice Note: Preparing the application form PA1P/ PA1A for probate/administration. For wider guidance on grants of representation, see Practice Note: Application for a grant of representation... Registering to use HMCTS online The initial step for an online probate application is to register your organisation and approved users with HMCTS online services for legal professionals. My HMCTS is the portal used by legal professionals and other organisations to issue, pay for and manage applications across the civil and family courts and...

What is pre-export finance ( PXF)? Pre-export finance ( PXF) is a long-standing arrangement that delivers funding to producers of goods and commodities. It is a form of structured trade finance (see Practice Note: Introductory guide to structured trade finance). These structures emerged because, historically, many producers of goods and commodities—particularly in emerging markets—were not regarded as sufficiently bankable to secure finance through orthodox channels, such as conventional corporate loans backed by the borrower’s balance sheet. In a classic PXF facility, a lender or a syndicate of lenders advances funds to producers to assist them in meeting either working capital requirements (for example, to cover the purchase of raw materials and the costs associated with processing, storage and transport) or capital investment requirements (for example, investment in plant and machinery and other elements of infrastructure). For the purposes of this Practice Note, 'lender' refers to either a...

This Practice Note examines when a failure to follow a pre-action protocol or the Practice Direction Pre- Action Conduct and Protocols may lead to a party being penalised, as well as the types of sanctions that could be imposed. For broader guidance on the potential recovery of costs incurred before proceedings, see Practice Note: Pre-action—costs recovery. Compliance with pre-action protocols The Practice Direction Pre- Action Conduct and Protocols (the Practice Direction) outlines the behaviour ordinarily expected of parties prior to commencing proceedings. Its provisions apply in every case, and are expressly stated to govern where none of the more detailed, subject-specific protocols are applicable to your claim (see Practice Direction Pre- Action Conduct and Protocols, para 2). For further detail, consult Practice Note: Pre-action behaviour in non-protocol cases— Practice Direction Pre- Action Conduct and Protocols. If your claim is caught by one of the dispute...

This Practice Note examines the recovery of costs incurred pre-action. It outlines the provisions within the Senior Courts Act 1981 ( SCA 1981), CPR 44, the pre-action protocols and the court guides. It highlights the rules for civil matters falling under the fixed costs regime on or after 1 October 2023. It also records pertinent case law on the principles governing recovery of pre-action costs. Pre-action costs—what are they? Pre-action costs are the expenses a party incurs before the commencement of court proceedings. Such outlays can be substantial and may include, without limitation, the following: obtaining instructions from the client and keeping them informed about the progress and development and status of the case engaging in dialogue and correspondence with the other side, including without prejudice exchanges and potential settlement discussions and...

Practice Note This Practice Note examines pre-action behaviour in ordinary and commercial civil disputes in Scotland. For guidance on: pre-action steps in Scottish personal injury matters, see Practice Note: The Scottish Personal Injury Pre- Action Protocol other issues to weigh before raising a civil claim in a Scottish court, and how to commence and advance a claim, see Scottish DR: prescription and limitation—overview and Scottish DR: case management and evidence—overview respectively, which lead to more detailed guidance the closest comparable process in England and Wales, see Pre-action: general—overview and Pre-action protocols—overview, which in turn link to fuller guidance on various aspects of pre-action conduct in England and Wales Note: this Practice Note does not provide guidance on pre-action requirements in ordinary actions that are partly governed by statute; for example, where a lender seeks to enforce a qualifying standard security under the...

Types of patent claims Patent claims fall into two principal classes: product claims and process claims. Section 60(1) of the Patents Act 1977 recognises that these two claim types attract distinct scopes of protection. Beyond this basic division, claims can also be grouped according to their specific configuration or characteristics. These configurations and characteristics have developed through case law, patent office practice and legislative developments. This Practice Note outlines several of the key claim forms practitioners most frequently meet. Claims to products A product claim targets a thing per se, such as an article, machine, substance or composition. These claims require the item to include specified technical features, whether structural or functional, to set it apart from what is known. Structural features concern the product’s physical attributes, while functional features relate to what the product can achieve. Any structure capable of performing the stated function may fall...

THIS PRACTICE NOTE APPLIES ONLY TO DEFINED BENEFIT AND HYBRID OCCUPATIONAL PENSION SCHEMES What is a 'sectionalised' pension scheme? A pension scheme can be set up in several different ways and configurations. For example, it might take the following forms: include more than one participating employer within the same arrangement and establish distinct benefit designs for members employed by different employers originate from earlier mergers or bulk transfers of members’ benefits arising out of corporate transactions, leaving a single sponsoring employer but retaining rules under which different groups of members receive different benefits provide both earlier, historic defined benefits together with more recent defined contribution benefits operate as an industry-wide arrangement that permits multiple employers to participate, each with its own section delivering benefits to its own employees The rules of the scheme may then expressly state: that the scheme’s assets are held and administered as one overall fund and,...

MF/1 Formerly titled ‘ Model Form A’, ‘ MF/1’ sets out Conditions of Contract for the design, supply and installation of electrical, electronic and mechanical plant. First issued in 1903 by the Institution of Electrical Engineers ( IEE), further editions appeared across the twentieth century. In 1926 the Institution of Mechanical Engineers joined the IEE as co-publisher, broadening the scope to include mechanical works. The 1988 edition adopted the MF/1 name and merged with the export version. This Practice Note reviews the 2014 Revision 6 of the form, now published on behalf of the Institution of Engineering and Technology ( IET) and the Institution of Mechanical Engineers. Other contracts within the Model Form suite cover supply only ( MF/2 and MF/3) and professional services ( MF/4). See Practice Notes: MF/2 Rev 2 (1999), MF/3 Rev 1 (2001) and MF/4 (2003). MF/1 is...

This Practice Note explores the procedure for summary assessment, the measures parties should take where such an assessment is undertaken, and the enforcement of costs orders made on a summary basis, outlining how parties should approach these stages. The application No formal application notice is needed for the court to carry out a summary assessment of costs. At the close of the application hearing, or the substantive hearing where summary assessment is appropriate, the successful party seeking to recover the hearing costs need only ask the judge orally to summarily assess the costs. The application can then be addressed by any of the following, or a combination, as the judge considers appropriate: the court allows the parties time to try to agree costs oral submissions written submissions Prior to the hearing To ensure the process of summary assessment at the hearing runs as...

Practical completion signals the close of a project’s construction phase, the point at which the works are sufficiently ‘finished’ for the employer to take possession and/or put them to use. It commonly triggers the commencement of the defects liability period or maintenance period. As set out below, this milestone carries weight, bringing notable commercial, contractual, financial and practical consequences for both the employer and the contractor. Determining whether a scheme has actually reached practical completion often provokes contention, becoming a regular flashpoint for disagreements and disputes across the construction industry. In some contracts, practical completion is described as ‘substantial completion’ or simply ‘completion’. What does 'practical completion' mean? Many of the difficulties that arise on construction projects in relation to practical completion stem from uncertainty over what the term really entails. The phrase is frequently included in building contracts with minimal, if any,...

This Practice Note outlines the filings and notifications a company must make after a general meeting or annual general meeting ( AGM) concludes. It addresses the Companies Act 2006 ( CA 2006) obligations applicable to meetings of all companies, as well as the further obligations under the UK Listing Rules ( UKLR), the AIM Rules and the UK Corporate Governance ( UKCG) Code relevant to listed and AIM companies. See also: How to conclude matters after a general meeting (or AGM). General meetings Under the CA 2006, there are two types of members’ meetings: general meetings and AGMs. A public company is required to convene an AGM annually, within six months starting from the day after its accounting reference date. A private company has no annual obligation to hold an AGM, though it may elect to do so, and its articles may stipulate that an AGM is to be held...

Offence of possession of an indecent photograph of a child Under section 160 of the Criminal Justice Act 1988 ( CJA 1988), a person commits an offence by having in their possession any indecent photograph or pseudo-photograph of a child. This is an either way offence. Indecent There is no definition of ‘indecent’. The jury must determine indecency by reference to recognised standards of propriety, using an objective test rather than their wholly subjective views alone. A child A child means a person who was under 18 at the material time. Expert evidence regarding a child’s age is inadmissible, since the jury are well placed to assess the age of a child for themselves. It is a question of fact for the jury to determine ultimately. Photograph or pseudo-photograph The terms photograph and pseudo-photograph bear the same meaning, for these purposes, under section 7 of the Protection of Children Act 1978 ( PCA...

This Practice Note explores portability provisions in high yield bond documentation. It explains what portability signifies before moving to the principal points in high yield documentation and how portability features in loan documentation. It proceeds on the basis that readers possess some knowledge of market terminology. For introductory material on acquisition finance, with links to more detailed resources, see Practice Note: Introductory guide to acquisition finance. For a glossary of acquisition finance terms, see: Glossary of acquisition finance terms and jargon. What is portability? High yield bond covenant packages commonly include provisions granting bondholders a put option—typically at 101% of par (plus accrued and unpaid interest)—triggered by a change of control ( Co C). This mechanism allows bondholders to reassess their investment and, in specified circumstances where the issuer’s management and ownership are likely to have altered fundamentally, to exit without suffering a loss......

Fingerprints may always be taken from a suspect where they agree. If the suspect is at a police station and consents, that consent must be recorded in writing. For someone who is under 17 but has reached 14, the appropriate consent of a parent or guardian is also needed. Anyone under 14 cannot consent; in such cases, consent must come from their parent or guardian. Where a suspect withholds consent, the power to take fingerprints depends on the circumstances. Under the Police and Criminal Evidence Act 1984 ( PACE 1984), police may take fingerprints without consent if: the person has been arrested, charged or convicted of an offence in the UK; they have been convicted of a serious offence overseas; or there are concerns about establishing their identity......

Knowing what can amount to criminal property is central to the core money laundering offences in sections 327, 328 and 329 of the Proceeds of Crime Act 2002 ( POCA 2002). Each offence requires dealing with criminal property with the necessary mens rea, namely to: conceal, disguise, convert or transfer property known or suspected to be criminal, or remove such property from the jurisdiction ( POCA 2002, s 327) enter into, or be concerned in, an arrangement known or suspected to facilitate—by any means—the acquisition, retention, use or control of criminal property by or for another ( POCA 2002, s 328) acquire, use or possess property known or suspected to be criminal ( POCA 2002, s 329) For detailed guidance on these offences, see Practice Notes: Money laundering...

Where two partners in a joint venture each hold an equal 50% stake in the share capital of the joint venture company ( JVC), that arrangement is commonly referred to as a deadlock, or deadlocked, joint venture. Under this structure, both parties must consent to any and all decisions to be taken by the JVC; where they fail to agree on a proposed course of action, no action is implemented and the status quo is preserved. When will deadlock be an issue?......