Legal Practice Notes

This Practice Note summarises the procedural code for sentencing offenders in England and Wales (the Sentencing Code), set out in Parts 2–13 of the Sentencing Act 2020 ( SA 2020). For those assessing whether the Sentencing Code applies to their case, see Practice Note: Sentencing Code. Schedule 10 of SA 2020 governs the consequences where a community order imposed by a magistrates’ court or the Crown Court is breached, and also addresses revocation and amendment of community orders. For further guidance on amending or revoking a community order, see Practice Note: Amendment and revocation of community orders. A breach of a ‘community order’ arises if an offender, without reasonable excuse, fails to comply with any requirement attached to the order made by the court. This includes the obligation to maintain contact with their ‘responsible officer’ and not to move home without that officer’s consent or a...

An arbitration agreement records the parties’ consent to settle their dispute through arbitration, and that validly given consent cannot later be retracted by one side alone. Moreover, the duty to arbitrate is separable and independent from the principal contract. If a party breaches that understanding by trying to have the dispute determined through court proceedings, there are remedies, at both national and international level, available to compel compliance with the duty to arbitrate as reflected in the arbitration agreement. The remedy of enforcement of an arbitration agreement by a stay of proceedings Under section 9(1) of the Arbitration Act 1996 ( AA 1996), as amended by the Arbitration Act 2025, a party to an arbitration agreement who is sued in court over a matter that, under that agreement, must be referred to arbitration, may apply to the court in which the legal...

Scope of Practice Note This Practice Note on preparing a notice of breach of contract highlights the principal situations in which serving such a notice may be appropriate and explains the context for our tailored notice of breach precedents. Many commercial agreements contain terms requiring a party in default to receive notice of its breach. Frequently this sits within a termination clause and may be necessary to enable the defaulting party to remedy the failure and/or operate as a preliminary step to issuing a termination notice for breach under a contractual right to terminate. That said, not every breach of contract creates a right to terminate or necessitates a notice to remedy; some breaches may confine the innocent party to a claim for damages only. In those circumstances, a notice may be issued to inform the defaulting party that the innocent party requires the breach to be...

One important way to classify loans is by how many lenders are involved. A facility with a single lender is a ‘bilateral loan’. Where more than one lender participates, it may be a ‘syndicated loan’ or a ‘club loan’. Multiple lenders can also participate indirectly through sub-participation. This Practice Note sets out the key features of bilateral loans, syndicated loans and club loans. Bilateral loans A bilateral loan involves just one lender. There may be a sole borrower or several obligors, that is, the borrower plus other group companies acting as guarantors and/or providing security. Such loans are commonly used for relatively small amounts and for simpler financing needs, for example a straightforward overdraft or a term loan. If a borrower seeks a larger sum, a single lender may be unable or unwilling to advance the full amount. In that situation, a...

This Practice Note examines the court’s approach where there is a dispute over which party’s terms and conditions govern their agreement in a ‘battle of the forms’, a scenario most often encountered in negotiations between commercial suppliers and buyers of goods, each seeking to conclude a contract on its own standard terms and conditions. When does a ‘battle of the forms’ scenario arise? Such a ‘battle’ arises when two parties embark on negotiations intending to enter a contract, yet each attempts to finalise it on their own standard terms and conditions. In that case, it is necessary to determine: whether a binding contract has been made between the parties and, if so, which party’s terms and conditions, if any, have been incorporated into the contract This situation often occurs in dealings between commercial suppliers and buyers of goods who each wish to conclude on their own...

This Practice Note This Practice Note sets out the situations in which the court may decline to issue a decree in nullity proceedings. It outlines the universal bar applicable to every matter, alongside the three bars confined to particular cases. It also addresses the issue of estoppel within nullity claims. From 6 April 2022, the Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) took effect. While DDSA 2020 reformed aspects of the law governing proceedings for divorce, dissolution and judicial separation, it introduced no substantive alteration to the rules on nullity. Accordingly, the bases on which a marriage or civil partnership is void or voidable remain the same as before and unaffected by those reforms......

This Practice Note reviews what a ‘bare trust’ means and the inheritance tax ( IHT) approach taken to these arrangements. For details on the income tax and capital gains tax ( CGT) position of a bare trust, see Practice Note: Bare trusts—income tax and CGT. What is a bare trust? The label ‘bare trust’ refers to an arrangement where legal title to property sits with someone other than the beneficial owner of that same property for practical purposes. The beneficiary has unfettered rights to capital and income, while the legal holder undertakes the administration and day-to-day control of the assets concerned. Some examples of when a bare trust may exist are outlined below for guidance. Assets held for minors (children) Bare trusts gained in popularity following significant changes to the IHT treatment of settlements made by the Finance Act 2006 (see Practice Note: Finance Act 2006 changes to trust...

The Land Charges Act 1972 ( LCA 1972) requires HM Land Registry to keep distinct public records, namely: a register of land charges a register of pending land actions and pending bankruptcy actions a register of writs and orders affecting land, and of writs and orders in bankruptcy These sit entirely apart from the substantive title register and are administered by the Land Charges Department of HM Land Registry at its Plymouth office. This Practice Note explains when to carry out a bankruptcy search in those registers in relation to an individual or individuals. It does not cover enquiries aimed at assessing a company’s solvency; see the separate Practice Notes: Pre-contract searches, Pre-completion searches, and Quick guide to property insolvency. For guidance on land charges and the land charges register, refer to Practice Note: Land charges under the Land Charges Act...

Definition of property and some general principles Section 436 of the Insolvency Act 1986 ( IA 1986) adopts an exceptionally broad conception of property. It covers money, goods, choses in action, land and every variety of property wherever situated, as well as obligations and every form of interest—whether present or future, vested or contingent—that arises from, or is incidental to, property. This statutory reach extends to assets of all kinds, tangible and intangible, and regardless of location (on foreign property—see Sanders v Donovan). As regards land, the usual rules of international law mean a trustee in bankruptcy (trustee) will need an order from the court of the place where the asset is situated to enforce their rights. In broad terms, all property (so widely defined) that belongs to, or is vested in, the bankrupt at the start of the bankruptcy falls into the...

The core of aviation finance is a lender advancing funds to a borrower to finance, or refinance, the purchase of an aircraft. If the borrower defaults under the loan, the contractual documents and transaction structure are designed to give the lender prioritised access to the aircraft, or its sale proceeds, to recover outstanding sums... This is a classic asset finance model (see Practice Note: Introductory guide to asset finance): the lender accepts the borrower’s credit risk, supported by security over the aircraft. Yet aviation finance has evolved distinct legal and structural features that differentiate it from other financing techniques... Specificities of aviation finance These can be summarised as follows... Future value Aircraft are generally regarded as retaining future value better than many other asset classes. While much turns on the specific aircraft type and the engines fitted, lenders can usually forecast an aircraft’s likely market value over the life of the...

Executors General An executor is an individual chosen by the testator, usually in a Will or codicil, to: administer their assets, and give effect to the terms of the Will The office of executor arises from the testator’s Will or other testamentary instrument. A grant of probate confirms the executor’s authority. In practice, an executor can normally demonstrate entitlement only by securing probate, which banks and other bodies often require before allowing the executor to deal with and collect in the asset. The testator’s property vests in the executor from the moment of death without any gap in time. A testator may appoint: different executors for distinct parts of the estate some persons as executors of assets overseas and others for property in the UK separate executors for real property separate executors for literary estates The High Court may grant probate or letters of administration for any portion of the...

Note—to check whether notification thresholds in Austria and worldwide are triggered, see: Where to Notify... 1. Have there been any recent developments regarding the Austrian merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Austria? Looking back to an earlier, yet still highly relevant, reform, the 2017 amendments to the Cartel Act 2005 and the Competition Act 2002 introduced a transaction value threshold into Austrian merger control. Under the Cartel Act, s 9(4), a concentration must also be notified where all of the following conditions are fulfilled: the undertakings concerned together achieve more than €300m in worldwide turnover their combined Austrian turnover exceeds €15m the consideration paid (transaction value) is above €200m the target undertaking has significant activity in Austria This additional threshold, inspired by a similar German...

This Practice Note explores asymmetric jurisdiction agreements. It outlines the meaning of an asymmetric jurisdiction clause and includes practical illustrations of clauses appearing in contracts. It also reviews how such clauses interact with the Hague Convention on Choice of Court Agreements and the Hague Judgments Convention. For further commentary on other forms of jurisdiction agreement—namely exclusive and non‑exclusive jurisdiction clauses—see the following Practice Notes: Jurisdiction agreements—exclusive jurisdiction agreements Jurisdiction agreements—non-exclusive jurisdiction agreements What is an asymmetric jurisdiction clause? Asymmetric jurisdiction clauses (sometimes described as unilateral non‑exclusive, hybrid, or one‑way choice of court agreements) are a particular form of jurisdiction provision commonly employed where the contracting parties have differing preferences regarding which courts should hear and resolve disputes arising under, or in connection with, the contract. Ordinarily, these clauses stipulate that one party may commence proceedings only in the courts of a specified, named forum, while the other party may...

This Practice Note centres on the assignment of collateral warranties (see Practice Note: What are collateral warranties?). For wider guidance on assignment generally, refer to Practice Notes: Assignment in construction contracts and Legal and equitable assignment in construction contracts. Although this Practice Note discusses collateral warranties, the same principles apply where third party rights are used instead; see Contracts ( Rights of Third Parties) Act 1999 in construction—overview. Assignment provisions in collateral warranties The default position is that, if a contract says nothing about assignment, the benefit of that contract can be assigned without limit and without any need for consent, as allowed by section 136(1) of the Law of Property Act 1925 ( LPA 1925); there is no requirement to obtain the obligor’s approval to any intended assignment. See Practice Note: Restrictions on the assignment of rights in construction...

Legislative framework This Practice Note explores the transfer of IP rights. It sets out the statutory rules on the formal requirements for effecting legal assignments of patents, trade marks, copyright and designs, as contained in the Patents Act 1977 ( PA 1977), the Trade Marks Act 1994 ( TMA 1994), the Copyright, Designs and Patents Act 1988 ( CDPA 1988), the Registered Designs Act 1949 ( RDA 1949) and Assimilated Regulation ( EU) 6/2002, and addresses the possibility of partial assignments. It also addresses equitable assignments of IP rights. Alongside the shared principles applicable to patents, trade marks, copyright and designs, it identifies the specific issues to be considered when transferring each distinct right. The Note additionally deals with the assignment of rights that may arise in future, and with assignments of comparable trade marks and re-registered designs. It explains how to...

Asset protection trust An asset protection trust is created to shield property against possible risks and looming threats. Such dangers may arise from outsiders like would‑be potential creditors, or from a husband or wife during divorce. Alternatively, issues might stem from the beneficiary’s own traits and circumstances, for whom the trust is intended. That person may be careless with money or exposed to harmful pressures or addictions, for example drugs. Frequently, an asset protection trust takes a discretionary shape, though this is not essential or inevitable. It may instead grant the specified beneficiaries an immediate interest in possession. Where that applies, it ought to be clearly subject to overriding powers of appointment, allowing the interest in possession to be ended if a beneficiary is made bankrupt or faces an adverse claim by a creditor or a husband or wife....

This Practice Note outlines the provisions of the Companies Act 2006 ( CA 2006) concerning the absolute or conditional entrenchment of specified clauses in a company’s articles of association. It also addresses the relationship between entrenchment provisions and a variation of class rights. What are 'provisions for entrenchment'? The standard method for changing a company’s articles is by special resolution. Nonetheless, the articles may include entrenchment so that alteration is permitted only if defined conditions are satisfied or particular procedures are observed. Those conditions or procedures are called ‘provisions for entrenchment’. Any article that cannot be changed unless those requirements are met is an ‘entrenched provision’. As a rule, such requirements are drafted to be more stringent than those for passing a special resolution, raising the hurdle or imposing extra formalities before an amendment can be made, yet it remains impossible to render a...

A central tenet of EU competition law is that rival undertakings operate on markets without coordinating their conduct. Generally, active rivalry is expected to deliver maximum consumer welfare, allocate resources most efficiently and, in the context of the EU single market, advance deeper market integration. The European Commission (the Commission), along with other regulators such as national competition authorities, is therefore cautious about arrangements that could soften competitive pressure or remove the commercial uncertainty that should exist between competitors. Nevertheless, businesses may have sound reasons to conclude agreements that include provisions or obligations with the potential to limit competition. This is particularly so where such arrangements are designed to create or encourage beneficial outcomes (efficiencies) that would not materialise in the absence of the restriction embedded in the agreements. Cooperation may sometimes be needed to realise otherwise unattainable...

Introduction This Practice Note delivers a succinct guide to Article 10 of the European Convention on Human Rights ( ECHR), which protects freedom of expression. Its primary aim is to summarise the European Court of Human Rights ( ECt HR) case law on Article 10, with references to UK decisions on Article 10 included where appropriate. This Practice Note addresses: the text and structure of Article 10 the core principles governing Article 10 disputes the breadth and limits of Article 10 the lawful bases for restricting the right the penalties and other sanctions that may follow The structure of Article 10 Article 10 is a qualified right formed of two limbs. Article 10(1) sets the parameters of the freedom of expression. Article 10(2) specifies when a public authority may legitimately interfere with that freedom. Article 10 is one of four...

This Practice Note considers the role of state immunity in relation to arbitration proceedings in the United Arab Emirates ( UAE) This note reviews how state immunity interacts with arbitration in the UAE. For a broad primer on state immunity and arbitration, see Practice Note: State immunity and arbitration—general considerations. For further Practice Notes addressing state immunity across multiple jurisdictions around the world (including England and Wales), see: State immunity and arbitration—overview. On 3 May 2018, the UAE promulgated Federal Law No. 6 of 2018 on Arbitration (the ‘ UAE Federal Arbitration Law’). Taking effect on 16 June 2018, it revoked Articles 203–218 of the UAE Civil Procedures Law ( Federal Law No. 11 of 1992), which had previously regulated arbitrations seated in the UAE. The law applies to all ongoing UAE-seated arbitrations (excluding arbitrations seated in the DIFC and the Abu Dhabi Global Market (...