Legal Practice Notes

Administration with Will annexed—priority to apply for grant— Q& As For guidance on the different forms of grant of representation that personal representatives ( PRs) might be required to obtain, refer to Practice Note: The type of grant needed. In most estates where the deceased left a valid Will, there is at least one executor named who survives and is ready and able to act. One or more of those appointed will then proceed to apply for a grant of probate in the ordinary manner. This remains the standard route in straightforward circumstances. Occasionally, the executors first listed are unwilling or unable to serve, yet the Will identifies one or more substitute executors who are prepared to do so. See Practice Note: Application for a grant of representation. Their appointment enables continuity in progressing the estate as intended. That said, it is not uncommon for every...

This Practice Note explores applicable law clauses—also called governing law clauses, proper law clauses or choice of law clauses. It explains why parties agree an applicable law clause and the key matters to weigh up. It also provides insight into circumstances in which parties may alter the applicable law clause in their contract, and considers whether floating applicable law clauses and stabilisation clauses are effective. For an introduction to applicable law, see Practice Note: Applicable law—a guide for dispute resolution practitioners. Contracts may include a single provision combining jurisdiction and applicable law. For guidance on jurisdiction clauses, see Practice Note: Jurisdiction agreements—introduction. What is an applicable law clause? An applicable law clause records the parties’ agreement, reached during contract negotiations, specifying which country’s laws the courts are to apply if a dispute arises between the contracting parties and proceedings are commenced that require a...

Within this Practice Note is a catalogue of commonly used medical short forms and symbols present in clinical notes...

Future copyright Subject to certain caveats (set out in more depth in Practice Note: Copyright—subsistence and qualification), copyright comes into being automatically once a protected work is captured, or 'fixed', in a lasting medium, for instance in writing, on film, or as a sound recording. Before that moment, the work is a 'future work' and falls outside the protection of the Copyright, Designs and Patents Act 1988 ( CDPA 1988). Where a work has not yet been fixed but is expected or foreseen, a prospective owner can treat it as if already created. By way of illustration, they may assign or licence the future copyright in that future work, even though, at the time of making the arrangement, the work in question does not yet exist physically......

STOP PRESS: From 24 February 2025, the principal parts of the Procurement Act 2023 ( PA 2023) have taken effect. Any procurement launched on or after that date must proceed under PA 2023, while procedures initiated under the earlier regime (the Public Contracts Regulations 2015 ( PCR 2015), the Utilities Contracts Regulations 2016, the Concession Regulations 2016, and the Defence and Security Public Contracts Regulations 2011) must continue to be run and administered in line with those rules. See Practice Note: Introduction to the Procurement Act 2023— PA 2023. PCR 2015 as assimilated law PCR 2015 are EU-derived domestic legislation and therefore constitute assimilated law under sections 2 and 6 of the European Union ( Withdrawal) Act 2018. For practical guidance on the standing and interpretation of assimilated law, see Practice Note: Assimilated law. Legal regime Framework agreements are ever more common for procuring works, services and...

Introduction Where a property transaction in England and Wales involves an overseas company, a legal opinion should be obtained. Common examples include: the sale or purchase of land the grant of a lease the provision of a guarantee the taking or granting of any security For this Practice Note, an ‘overseas company’ is any entity incorporated outside the United Kingdom (that is, outside England, Wales, Scotland and Northern Ireland). Companies formed in the Channel Islands and the Isle of Man are treated as overseas companies. This aligns with the Companies Act 2006 and the Land Registration Rules 2003, SI 2003/1417. Note that advice from solicitors qualified in Scotland or Northern Ireland may be needed where the property is located in Scotland or Northern Ireland, or where the contracting party is a distinct legal entity not governed by the Companies Act 2006. Also, a legal opinion will be necessary where a...

What is a force majeure clause Contractual force majeure ( FM) provisions outline what applies when unforeseen events beyond a party’s control hinder performance. Where such circumstances occur, FM terms typically: release the affected party from all or part of its duties, or permit it to pause performance of its contractual obligations grant additional time to comply with time‑bound obligations and, in many instances, allow the contract to be terminated where a prolonged FM event prevents performance The great majority of international business agreements contain FM language. However, there is no universally accepted definition of “force majeure” or a fixed catalogue of triggering events, as legal systems take different approaches. While civil law jurisdictions often set out express definitions within their national codes, the law of England and Wales has no doctrine of force majeure. In its absence, commercial parties must rely on the doctrine of...

What is force majeure? Force majeure denotes an occurrence outside the parties’ control that prevents them from meeting their contractual obligations. The courts have previously indicated that force majeure goes further than what is commonly meant by the expressions ‘act of God’ or ‘vis major’. There is, nevertheless, no exact legal definition of force majeure, so whether an event qualifies will depend on how the contract is construed. Standard form building contracts approach force majeure in varying ways (see below: Force majeure in standard form building contracts). Parties might, or might not, choose to set out a definition of force majeure within their agreement. As a result, predicting with any certainty what will amount to force majeure in any given situation is difficult—the language of any force majeure clause, together with the particular facts, must be carefully analysed in each instance....

What are fluctuations? Fluctuations provisions are terms in construction contracts that permit the contract sum to be varied to reflect shifts in the cost of labour, materials and other expenses over the course of a project. For example, if a contractor prices a tender using rates current at the tender date, and inflation then increases the cost of delivering the works during the job, the contractor must absorb that increase. Where a building contract omits fluctuations provisions, the contractor is treated as having allowed for inflation and accepted the risk of price rises within its pricing. By contrast, in the absence of a fluctuations clause, if market prices fall, the contractor might benefit from those savings. If fluctuations clauses are included, the contractor may be entitled to reimbursement of some or all additional costs caused by rising prices. The uplift can be...

Types of security Under English law, four principal forms of security exist: Mortgage Charge Pledge Lien This Practice Note sets out: the nature of a charge (as contrasted with other security interests) the distinction between a fixed charge and a floating charge the asset classes commonly subjected to fixed charges perfection of fixed charges priority issues when taking a fixed charge The Note mainly centres on fixed charges. Practice Note: Floating charges offers fuller detail on floating charges, including factors to weigh when taking a floating charge, and matters of crystallisation and re-characterisation. Special rules govern agricultural charges; for details, see Practice Note: Agricultural charges under the Agricultural Credits Act 1928. Key takeaways Nature of a charge – it grants the secured creditor an equitable proprietary interest without passing title or possession, setting it apart from...

FORTHCOMING DEVELOPMENT : The Financial Services and Markets Act 2023 ( FSMA 2023) delivers the outcomes of the Future Regulatory Framework Review by revoking retained EU financial services law listed in FSMA 2023, Sch 1 and replacing it with regulation tailored to the UK. Among the instruments named in FSMA 2023, Sch 1 are the Financial Collateral Arrangements ( No 2) Regulations 2003, SI 2003/3226 ( Schedule 1, Part 2, Subordinate legislation), and the EC Financial Collateral Directive, Directive 2002/47/ EC ( Schedule 1, Part 3, EU tertiary legislation). The revocation of these two measures is not yet in effect. It is expected that the repeal of retained EU financial services law will proceed over a number of years, and the nature of any successor regime for financial collateral remains unknown. For further details on FSMA 2023, see Practice Note: The Financial Services and...

This Practice Note examines the FIDIC Conditions of Contract for Plant and Design Build 1999, widely referred to as the FIDIC Yellow Book 1999. FIDIC released a new edition of the Yellow Book in December 2017—see Practice Note: FIDIC contracts—introduction to the FIDIC Yellow Book 2017 for guidance on the 2017 edition. In respect of the 1999 suite, also consult Practice Notes: FIDIC contracts—introduction to the Red Book 1999, FIDIC contracts—introduction to the Silver Book 1999 and FIDIC contracts (pre‑2017 editions)— Yellow and Silver Books compared. For what type of project is the contract suitable? The FIDIC Yellow Book 1999 is recommended for supplying electrical and/or mechanical plant, and for building or engineering works where the Contractor undertakes the design. The FIDIC Yellow Book 1999 is not appropriate where the Employer performs the design—in that case, the FIDIC Red Book 1999 should be used...

This Practice Note provides an overview of the FIDIC Green Book 2021 (the Short Form of Contract), rather than a detailed clause-by-clause analysis. In December 2021, FIDIC released the second edition of the Green Book. For background on that release and the main changes from the first edition, see News Analysis: FIDIC Green Book 2021—what’s changed? For guidance on other documents in the FIDIC suite, see: FIDIC contracts 2017 onwards—overview FIDIC contracts pre-2017 editions—overview For what type of project is the Green Book suitable? The FIDIC Green Book is principally aimed at projects with a low perceived risk profile and/or where the parties want a straightforward form that does not demand substantial contract administration and management resources. Its scope is not limited to simple or repetitive works, short programmes, or low capital value projects. It stands as an alternative to the FIDIC Red or...

This Practice Note offers an overview of the FIDIC Conditions of Contract for Design, Build and Operate Projects 2008, widely referred to as the Gold Book 2008. For what type of project is the Contract suitable? The FIDIC Gold Book 2008 is a design, build and operate form (‘ DBO’)—for general background on DBO arrangements, see Practice Note: DBO contracts. It presumes a greenfield design‑build‑operate model with a 20‑year operations and maintenance term. It is unsuitable for brownfield schemes, i.e. the enhancement of an existing asset. According to the FIDIC DBO Contract Guide (1st edition, 2011—issued by FIDIC), the Gold Book may suit infrastructure undertakings where the completed facility is expected to generate income or receipts for the Employer, and where the Employer may lack the capability or know-how to run the facility and might otherwise appoint a service provider or operator. It is...

Performance and testing provisions—2017 Red, Yellow and Silver Books This Practice Note reviews the performance and testing clauses in the 2017 iterations of the Red, Yellow and Silver Books. It considers testing carried out during execution of the works, as well as tests at completion and thereafter. For details of the performance and testing obligations under the 1999 editions of the Red, Yellow and Silver Books, and under the Pink and Gold Books, see Practice Note: FIDIC contracts (pre-2017 editions)—performance and testing requirements. In any construction contract, a central concern for both employers and contractors is determining when the works will be regarded as ‘complete’. The employer seeks assurance that the works are delivered strictly in accordance with the contract, while the contractor requires clarity on those obligations and the actions needed to achieve them. Accordingly, it is crucial that the contract...

This Practice Note provides an overview of the contents and structure of the Financial Conduct Authority ( FCA) Handbook. On 1 April 2013, the Financial Services Authority ( FSA) Handbook was divided between the Financial Conduct Authority ( FCA) and the Prudential Regulation Authority ( PRA), creating two distinct handbooks: one for the PRA, setting out provisions made by the PRA that apply to PRA-authorised firms: the PRA Rulebook; and one for the FCA, containing rules, guidance and other provisions made by the FCA that apply to FCA-authorised firms: the FCA Handbook. Most provisions in the FSA Handbook were carried into the PRA's handbook (replaced by the PRA Rulebook on 29 August 2015), the FCA's handbook, or both, in line with each regulator's responsibilities and objectives, while other provisions were deleted. Although the FCA Handbook designates or adopts material formerly within the FSA Handbook,...

How to use this index This Practice Note offers an index with links to the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955—the main procedural rules that apply to family proceedings—together with all supporting Practice Directions. Use the ' Table of Contents' tab on the left-hand side of the screen; it will expand to reveal every Part of FPR 2010 and the associated Practice Directions for each individual Part. To open material within FPR 2010, select the margin note to the right of the text for the specific Part or Practice Direction you wish to consult. When you are inside a Part of FPR 2010, click the ' Table of Contents' tab on the left to then expand that Part, display all rules contained in it, and allow you to navigate to the relevant provision you are interested in or...

In certain welfare matters before the Court of Protection, a fact-finding hearing is needed to settle disputed points of fact arising in the case and to enable the proceedings to move forward fairly. When is a fact-finding hearing required? Most welfare applications in the Court of Protection ordinarily generally indeed conclude without any separate, formal fact-finding exercise. Typically, although parties may differ over the future plan said to ultimately serve the vulnerable person ( P)’s best interests, they nonetheless usually accept the key, material background facts the court must take into account. Only in a small fraction of cases exceptionally does the court actually exercise case management powers to order a fact-finding hearing to decide contested facts. The court, in practice, most often commonly directs such hearings (either standalone or folded into the final hearing) in so-called ‘safeguarding cases’ brought by local...

Identification procedures In every criminal case the prosecution must establish the identity of the individual who committed or participated in the commission of an offence. Visual identification is the most frequent means of identification, yet it is also the most troublesome because such evidence can be unreliable, even when an eyewitness sincerely believes they have identified the correct person. The procedures governing eyewitness identification are set out in Code of Practice D to the Police and Criminal Evidence Act 1984, known as PACE Code D. Those procedures generally do not extend to matters of recognition. See Practice Note: Challenging visual identification evidence. They are intended to assess how reliably a witness can identify a suspect and to provide safeguards against mistaken identification. The process adopted will differ according to whether the suspect is: known and available known but not...

Guide to executing simple contracts across jurisdictions This guide explains the requirements for signing simple contracts in a range of international jurisdictions. A table gives a quick-reference snapshot of the execution formalities for companies, individuals and partnerships in different countries. Fuller commentary for each overseas jurisdiction listed in the table appears in the sections below. For guidance on the execution of deeds in various jurisdictions, see Practice Note: Execution of deeds—jurisdictional guide. For electronic signatures, see Practice Note: E-signatures—jurisdictional guide. For the formation of contracts, see Practice Note: Contract formation—jurisdictional guide. For executing documents under Scots law, see: Execution— Scotland—overview. Please note: this is an introductory resource only, and local advice from suitably qualified legal professionals in the relevant country should be obtained where appropriate. Summary table What are the requirements for companies when executing contracts? What are the requirements for...