Legal Practice Notes

Note—consult Where to Notify to check whether notification thresholds in Costa Rica and across the globe are met. 1. There have been recent developments regarding the Costa Rican merger control regime. What are the main points of interest and are any further updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Costa Rica? A ruling is keenly awaited in 2025 from the competent authority on the request for merger analysis between LBT CT Communications and Millicom Spain S. L. (case file L0159- STT- MOT- CN-01308-2024) (not reported by Lexis Nexis®). The operation has attracted considerable interest, as both companies are major players in the telecommunications industry, with reach extending to the international arena. A preliminary assessment by the Superintendence of Telecommunications ( SUTEL) indicates both undertakings hold a strong presence across multiple segments, including fixed broadband internet,...

During a corporate transaction (transaction), a professional adviser—for example, a financial adviser, solicitor, or accountant—will enter into a letter of engagement with the party undertaking the transaction (client), setting out the agreed terms of that engagement. Such a letter is ordinarily put in place at the outset of, or during, the initial stages of the transaction, as the process begins......

This Practice Note explores the doctrine of separate legal personality for a registered company, and surveys the relevant case law addressing the narrow situations in which the corporate veil might be pierced. It also separates true piercing or lifting of the veil from the more routine instances in which the veil is sidestepped by reliance on another legal or equitable entitlement. The analysis underscores the limited nature of this intervention and the authorities that define it. Corporate legal personality—the Salomon principle A duly incorporated company is a person distinct from its members, holding its own rights and bearing its own liabilities as an independent legal subject. This rule, often called the corporate veil or the Salomon principle, was most famously articulated by Lord Mac Naghten in Salomon v Salomon: the company, at law, is wholly separate from the subscribers to the...

Overview of the offences of importing and exporting Although section 3 of the Misuse of Drugs Act 1971 ( MDA 1971) lays down the ban on importing and exporting controlled drugs, it is the Customs and Excise Management Act 1979 ( CEMA 1979) that establishes the criminal offences. See Practice Note: Possession of controlled drugs. The principal offences under CEMA 1979 are: improper importation ( CEMA 1979, s 50) unlawful exportation ( CEMA 1979, s 68) fraudulent evasion ( CEMA 1979, s 170) In effect, CEMA 1979, s 170 operates as a sweeping-up offence and, in practice, is relied upon far more frequently than the other two. With the exception of CEMA 1979, ss 50(6) and 68(1), which are summary only, almost all offences created by these provisions are triable either way......

A contract race occurs where a seller asks their solicitor to progress matters with two or more distinct would‑be purchasers. In that situation, the seller’s lawyer ought to reveal to the first buyer, or their representative, that other potential purchasers are in play. This Practice Note explains how that obligation arises under the SRA Standards and Regulations, which took effect on 25 November 2019, in situations where a seller’s solicitor acts for a client intending to deal with more than one buyer simultaneously. Sales by auction are not contract races; for further guidance on auctions, consult Practice Notes: Selling property at auction and Buying property at auction. Historic position—the rules under the SRA Code of Conduct 2011 Chapter 11 of the SRA Code of Conduct 2011 (the 2011 Code) addressed a solicitor’s dealings with third parties. Outcome 11.3 of that 2011 Code applied to contract races. It...

This Practice Note closely examines when the common law of England and Wales is used to identify the law governing contractual claims. It explains, in outline, the steps by which the courts in England and Wales deploy the common law to decide which system of national law ultimately applies to the matters in contention between the parties. For a broad, initial overview of key considerations commonly arising when selecting the applicable law, see Practice Note: Applicable law—a guide for dispute resolution practitioners. For guidance on determining the applicable law of an arbitration agreement, see Practice Note: Law of the arbitration agreement ( England and Wales). Why is the applicable law important? When resolving a contractual dispute, it is essential to identify the substantive law of the relevant country that the court will apply to resolve the dispute. That law is often described as the...

ARCHIVED: This archived Practice Note sets out illustrative decisions in contractual dispute claims from 1 January 2024 to 31 December 2025. For further analysis of illustrative and key decisions in contractual dispute claims from 1 January 2026 onwards, see Practice Note: Contract disputes—illustrative decisions (2026). The core principles governing contractual disputes on formation, interpretation and remedies for breach are largely settled; see: Forming enforceable contracts—overview Contract interpretation—overview Terminating contracts—how and when a contract ends—overview Contractual breach damages and remedies—overview Transferring contracts and rights of third parties—overview Although every case must be assessed on its own merits and its distinct factual and legal matrix, it is helpful to observe how the principal rules function within real contexts. Accordingly, this Practice Note gathers some of the more illustrative decisions in contractual disputes. The decisions set out below date from 1 January 2024 onwards...

This Practice Note distils the law, guidance and practical approach to varying contracts and deeds. It outlines how a contract or deed can be changed in writing, orally or by conduct, and also addresses unilateral variation, waiver and sustained minor breach. It offers practical and drafting pointers, flags issues when adjusting business-to-consumer contracts, public contracts and third party guarantees, and considers third party rights on variation. For a step-by-step guide to contract variation with full resources, see Practice Note: How to vary a contract. Where a variation stems from renegotiation after difficulties during performance, see also Practice Note: Managing difficulties in commercial contracts for further guidance. When is a contract variation appropriate? In commercial life, parties rarely operate only through isolated, stand-alone agreements; rather, relationships evolve over time, which may necessitate changes to existing contracts. Variations may arise and be proposed for many reasons,...

Continuity of employment ( ERA 1996) This Practice Note explores provisions of the Employment Rights Act 1996 concerning continuity of employment. It explains why length of service matters—namely eligibility to bring claims and the level of compensation—and sets out the general principles of calculation; when a period of continuous employment commences and ends; what constitutes a break in continuity (a break in service); how the continuous period is worked out; situations in which a change of employer does not interrupt continuity; which weeks count where there is a contract of employment and which weeks count where no contract is in place; the effect of sickness, injury or a temporary cessation of work; the operation of any arrangement or established custom that preserves continuity; the impact of zero hours contracts; rules applicable to health service employers; protection of redundancy payments for NHS and public...

Orders issued by the Court of Protection do not invariably need enforcing—for instance, a declaration about P’s capacity, or lack of capacity, or a ruling that a specific course of conduct is lawful or unlawful. Nevertheless, there are many situations in which enforcement of the court’s orders becomes necessary, such as where P’s property and financial affairs have suffered financial abuse, or where personal contact with P has to be regulated, as appropriate in the circumstances. The Court of Protection ( Co P) holds wide-ranging powers to enforce its orders, by the court when required, under the Mental Capacity Act 2005 ( MCA 2005) and the Court of Protection Rules 2017 ( COPR 2017), SI 2017/1035. Under s 47(1) MCA 2005, the Co P is given enforcement powers equivalent to those of the High Court. In the same way as the Civil...

Constructive trusts This Practice Note considers constructive trusts, one of three trusts that do not need to be declared or evidenced in writing—the others being resulting trusts and implied trusts, though it is doubtful that any implied trust is not in truth either constructive or resulting. It looks at what amounts to a constructive trust, when such a trust may arise or be imposed, how unauthorised gains made by a fiduciary are dealt with, and the exposure of third parties. In Paragon Finance v D B Thakerar & Co ( Court of Appeal), Millett LJ split constructive trusts into two classes, distinguishing between: the constructive trust proper, where equity intervenes to stop the legal owner unconscionably denying another’s beneficial interest (the institutional constructive trust) the so‑called constructive trust, where equity grants relief for fraud by requiring those involved to account as if they were...

This Practice Note This Practice Note explores both statutory and contractual entitlements, in particular their scope and effect, to halt the carrying out of obligations under a construction agreement, chiefly triggered when an employer defaults on paying sums that are due. That statutory entitlement is found in section 112 of the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996), which sets out the timing and mechanisms for exercising suspension in practice. This Practice Note then reviews how the standard form JCT, NEC and FIDIC suites address suspension arising from the HGCRA 1996 or from non-payment, and also examines broader contractual grounds for a contractor to pause performance of its obligations (ie not just because of non-payment). Suspending works can be an effective means of applying pressure to an employer who is failing to settle invoices (whether entirely or within the due time)....

A dispute board A dispute board is a panel set up to help efficiently resolve disagreements that emerge under a construction contract arrangement. Its purpose is to enable quick, economical settlement of issues without requiring the parties to turn to the costlier and slower avenues of arbitration or the courts for formal determination instead. Given the expenditure involved (though still markedly lower than arbitration or litigation), dispute boards tend to be used more frequently on major construction schemes, and are encountered less regularly on smaller projects overall. They are typically included in construction contracts outside the scope of the Housing Grants, Construction and Regeneration Act 1996, for instance on international undertakings and projects. A dispute board usually comprises three individuals, though it can sometimes be a sole member. Certain contracts call for a standing dispute board, appointed at the outset and remaining in place for the life of...

Created in collaboration with 4 Pump Court. This Practice Note reviews the varieties of evidence usable in adjudication, encompassing documentary support, factual witness statements and expert opinion. It also addresses how material should be put before the adjudicator, whether papers may remain confidential, when disclosure applications could be allowed, and reliance on evidence or records from earlier adjudications. As a rule, there are no rigid prescriptions about the form or category of evidence to be supplied in an adjudication. The guidance below is of general effect for the use of evidence unless displaced by terms in a specific contract or a particular set of adjudication rules. Accordingly, any bespoke provisions or specific adjudication rules will take precedence. Always follow what the contract dictates. Both parties should strive to present their case to the adjudicator as plainly and coherently as possible. Excessive material may blur the true issues....

Constituting the trust As a rule, no trust comes into being, whatever the settlor intends, unless legal title is actually placed in the trustees. This step is called constituting the trust. The trustees must control the property. Where the transfer attracts formalities—for instance with land or shares—those requirements must be met. A trust becomes fully constituted by the settlor either: making an effective transfer of specified property to the trustees and stating the trusts on which they are to hold it; or declaring that property already vested in them is, from now on, to be held by them on trust. The effect of constitution of the trust Once constituted, a trust is: irrevocable by the settlor despite its voluntary nature, like a completed gift that binds the donor and cannot be undone (save where the terms of the trust expressly confer a power of...

Introduction Since the development consent regime was introduced by the Planning Act 2008 ( PA 2008), the requirement to obtain consent under section 36 of the Electricity Act 1989 ( EA 1989) has been greatly reduced. Nevertheless, s 36 still has application to: onshore and offshore generating stations in Scotland; and offshore wind (or water) generators with a capacity between 1 MW and 100 MW (excluding any within Scottish waters or a Renewable Energy Zone for which the Scottish Ministers have functions) When is s 36 consent required? EA 1989, s 36(1) bars the construction (at a ‘relevant place’), extension, or operation of a generating station without the consent of the ‘appropriate authority’. For these purposes, a ‘relevant place’ is a location in Great Britain, in the territorial sea adjacent to Great Britain, or within a Renewable Energy Zone ( EA 1989, ss 36(1) and (4)). ‘...

Consecrated land: Church of England For this part of the Practice Note, ‘consecrated land’ refers to any site or structure that has undergone a service—and the subsequent sentence—of consecration under the rites of the Church of England, and lies outside the territory governed by the Welsh Church Acts (a collective reference to the Welsh Church Act 1914, the Welsh Church ( Temporalities) Act 1919 and the Welsh Church ( Burial Grounds) Act 1945). It excludes land consecrated by any other Church (for example, the Roman Catholic Church or the Church in Wales), and does not cover land merely blessed during a funeral. Where some very old churches and churchyards are concerned, consecration must be assumed in the absence of formal documentation; however, the Diocesan Registrar will normally hold records of all consecrations (and deconsecrations) within the...

Matrimonial assets and confiscation A confiscation order operates in personam against the defendant, yet its calculation reflects the benefit derived from crime and takes account of their realisable property, concealed holdings and assets and any tainted gifts. For further detail and context, see Practice Note: Determining the recoverable amount (benefit and available amount) under POCA 2002. Accordingly, it may encompass lawfully acquired assets or those wholly untainted by the offender’s criminality, even in situations where civil recovery of that property, under Part 5 of the Proceeds of Crime Act 2002 ( POCA 2002), would be unavailable in law. See also Practice Note: Civil recovery orders under the Proceeds of Crime Act 2002. Where a person is married, there will typically be property commonly regarded as ‘assets of the marriage’ and, if the marriage unfortunately breaks down, such assets may become the subject of formal...

This Practice Note explores the definition, interpretation and practical use of conditions precedent in commercial arrangements. It also reviews common conditions precedent and key drafting considerations... What are conditions precedent? In a commercial contract, a condition precedent identifies an event that must occur before either: the contract itself, or a party’s obligations under the contract, take effect Until that event is fulfilled, neither the agreement nor the relevant duty is binding. The leading authority on construing a condition precedent is Bremer Handelsgesellscheft Schaft mb H v Vanden Avenne Izegem PVBA [1978] 2 Lloyd’s Rep 109 (not reported by Lexis Nexis®). There, Lord Wilberforce explained that whether a clause amounts to a condition precedent, or is some other form of contractual term, turns on: (i) the wording of the clause, (ii) its place within the agreement as a whole, and (iii) broader legal...

What are compulsory purchase powers? Compulsory purchase powers permit certain bodies, termed acquiring authorities, to obtain land without the owner’s consent where Parliament has authorised this to enable the authority to undertake specified functions that must serve the public interest. Anyone whose land is taken compulsorily is generally entitled to compensation. These powers are considered draconian and constitute an exception to the ordinary protection against interference enjoyed by private property. They can only be used where the public interest in the scheme behind the compulsory purchase demonstrably outweighs the landowner’s interest. As set out in Prest v Secretary of State for Wales, there is a constitutional principle that no citizen should be deprived of land by a public authority against his will unless Parliament expressly authorises it and the public interest decisively requires it, and then only on the basis that proper...