Legal Practice Notes

This Practice Note explores representations and warranties in business-to-business commercial agreements. It explains what each term means, how they differ, and illustrates their use in practice—covering pre-contractual and contractual representations, express and implied warranties, and collateral warranties. It also outlines available remedies, connected clauses and any contracting-out, third-party implications, and key drafting points. ‘ Representation’ and ‘warranty’ have defined meanings and are separate from other familiar contract labels (for example, conditions, indemnities and undertakings), which are not addressed in this Practice Note. For more on such terminology, see: Practice Note: Contract interpretation—conditions, warranties and intermediate terms Practice Note: Indemnities in commercial contracts Undertakings—overview See also Q& A: What is the significance of the words ‘warrants’ and ‘undertakes’ in a contractual obligation? What are representations and warranties and why does the distinction matter? Representations and warranties frequently appear across a broad spectrum of commercial contracts,...

This Practice Note outlines the journey of a standard real estate finance ( REF) deal, beginning with the term sheet and culminating in execution of the finance documents, addressing conditions precedent and, if a default occurs, enforcement of the lender’s security. At each step, this Practice Note signposts further Practice Notes and Precedents that explore every topic in greater depth. A helpful overview of a typical bilateral finance deal appears in the Loan transaction collection. For targeted guidance on the key issues to weigh up when entering into a real estate finance transaction, see: Real estate finance—checklist. Types of REF transactions Lending against the income stream a property produces is the most prevalent form of real estate finance. In its most straightforward guise, it is a loan to a borrower that is serviced and repaid from the rental income of the borrower’s property. For more...

This Practice Note explains the powers, processes and procedures for stopping up and diverting footpaths under sections 118 and 119 of the Highways Act 1980 ( Hi A 1980). Please note that there are alternative mechanisms for stopping up/extinguishing and re-routing rights of way. For an overview and comparison of the tools available to stop up or divert rights of way, see Practice Note: Powers to stop up and divert highways and footpaths. Stopping up of footpaths, bridleways and restricted byways under Hi A 1980, s 118 Section 118 of the Hi A 1980 confers a discretion on highway authorities to extinguish a footpath, bridleway or restricted byway where the route is unnecessary for public use. Orders made under section 118 are termed 'public path extinguishment orders'. Although a public path extinguishment order under section 118 must be made by the highway...

Most projects rest on a dense network of contractual ties linking all key participants in the scheme (eg the project company, equity investors, contractors, sub-contractors, offtakers and suppliers). Taken together, these contracts are commonly termed the ‘project documents’ in practice (see: Project documents—issues for lenders—overview). In projects focused on the production or exploitation of a product (eg a power project or a mine project), offtake agreements are also generally regarded as some of the principal project documents indeed. What is an offtake contract? An offtake contract is an agreement under which a third party (the offtaker) undertakes to purchase a defined quantity of the product generated by a project at an agreed price. The product is usually a commodity such as oil, gas, minerals or power. The purpose of an offtake contract is to: secure a predictable revenue stream for the project, and ensure there is a...

Pre‑delivery payment financing ( PDP financing) has become a widely used funding tool for airlines and lessors. However, as the number of PDP transactions has risen, aircraft manufacturers have applied closer scrutiny to the industrial and commercial matters that arise when a financier participates in aircraft purchase arrangements. As a result, any PDP financing may involve significant commercial points to negotiate, together with, at times, complex legal questions, particularly in relation to security. PDP financing, and the protections open to any lender, differ substantially from other forms of aviation finance. Funding is supplied while the asset is still under construction, and security cannot be taken in the same way as for a completed aircraft. Therefore, the provisions setting out the steps to be taken on enforcement are of fundamental importance to the manufacturer, the purchaser and the lender. PDPs and purchase agreements What are...

The offence of possession of a bladed article Under section 139 of the Criminal Justice Act 1988 ( CJA 1988), a person commits an offence if they have with them in a public place a bladed article to which the section applies. Proceedings may take place in either the magistrates’ court or the Crown Court. Where it appears that the magistrates’ court lacks sufficient sentencing powers, it will refuse jurisdiction. See: Sentencing for possession of a bladed article in public below. Elements of the offence An offence contrary to CJA 1988, s 139 is made out where the prosecution proves that the accused: had the item with them in a public place a bladed article, or a sharply pointed article Bladed and sharply pointed articles Section 139 CJA 1988 covers items with a blade or items that are sharply pointed, save for a folding pocket...

Disclosures made under POCA 2002 The anti-money laundering framework within the Proceeds of Crime Act 2002 ( POCA 2002) requires individuals to submit a disclosure regarding transactions they are handling for another person, in order to obtain a defence to one of the principal money laundering offences. For further information on the principal money laundering offences, see Practice Note: Money laundering offences under the Proceeds of Crime Act 2002. POCA 2002 identifies three forms of disclosure: a protected disclosure an authorised disclosure voluntary disclosures, required notifications and joint disclosure reports under POCA 2002, ss 339ZB–339ZG (see Voluntary disclosures, required notifications and joint disclosure reports below) Equivalent provisions exist concerning disclosure and offences for failing to disclose under the counter-terrorist financing regime set out in sections 19–21 of the Terrorism Act 2000 ( TA 2000). For more detail, see Practice Notes:...

Place of work and mobility clauses This Practice Note examines place of work and mobility clauses. Specifically, it looks at what a written statement of particulars of employment must say about workplace location, how mobility clauses operate in employment contracts and the circumstances in which they will be upheld, whether a mobility provision will be read into a contract where no express term exists, and the effect of a mobility clause in a redundancy context. The written statement of particulars of employment provided to a worker to meet section 1 of the Employment Rights Act 1996 ( ERA 1996), which typically forms part of an employment contract, must set out the worker’s place of work or, if the worker is required or allowed to work in different locations, an indication of that, together with the employer’s address as required under section 1......

Planning permission is required for the development of land Consent is required for development of land. “ Development”, as set out in section 55 of the Town and Country Planning Act 1990 ( TCPA 1990), comprises: operations affecting land, and changes of use of land Operational development includes building, engineering and mining operations, and other works (see Practice Note: Operational development). A change of use needs permission only where the change is material (see Practice Note: Material change of use). The Town and Country Planning ( General Permitted Development) Order 1995 ( GDPO 1995), SI 1995/418 allows certain development without applying for permission. GPDO 1995, SI 1995/418, Sch 2 grants permission for “permitted development”, such as: development within the curtilage of a dwelling house minor operations changes of use temporary buildings and uses (see below Temporary buildings and uses) certain caravan sites agricultural and forestry buildings and...

Overview of the The TSSC forms part of the NEC3 and NEC4 suites of contracts (see Practice Note: NEC contracts—introduction). It provides a shorter alternative to the full NEC3/ NEC4 Term Service Contract, which is addressed in a separate Practice Note: NEC Term Service Contract. The NEC3/ NEC4 Term Service Short Contract is designed for simple services that do not demand complex management and carry low risk for both employer and contractor. Typical applications include, for example, cleaning or catering. Parties should decide between the NEC3/ NEC4 Term Service Short and the Term Service contracts by assessing the potential risks that may emerge. Where risks are limited, the NEC3/ NEC4 Term Service Short Contract may be the right choice. Suitable services: cleaning, catering. Service delivery: routine or ad hoc when called off by the employer. The NEC3/ NEC4 Term Contracts are...

NEC terminology Practitioners encountering NEC contracts for the first time may find the following clarifications of expressions used in the NEC ECC helpful, as these agreements employ numerous terms that are distinctive to the NEC suite and/or may need added clarification. When working with the NEC ECC, remember that both capitalised words and those shown in italics carry significance for interpreting the contract. If a word is capitalised, its meaning is set out in clause 11.2. If a word appears in italics, look to the entries completed in the Contract Data (where a word is italicised in the NEC ECC, it is presented in italics in this glossary). This compilation also contains expressions used within NEC that are neither defined nor included in the Contract Data (therefore not every expression in this glossary is capitalised or italicised). The material below should always be read...

MLA is a framework for co-operation between States to secure support for the investigation or prosecution of criminal offences. MLA is ordinarily relied upon to access material unobtainable through voluntary co-operation between law enforcement bodies, particularly where coercive powers must be used. It may likewise be invoked to seek help with the restraint and confiscation of criminal proceeds and linked enquiries. The scheme governing formal assistance requests under MLA operates in addition to any avenues for voluntary co-operation that might be pursued—there is no overarching bar on police forces giving voluntary assistance to overseas law enforcement agencies outside the confines of the Crime ( International Co-operation) Act 2003 ( C( IC) A 2003). In R (on the application of Akarcay) v Chief Constable of the West Yorkshire Police, the claimant contested West Yorkshire Police’s provision of evidence to Northern Cyprus, which would enable...

This Practice Note is no longer updated This guidance concerns the position that applied before simplified Immigration Rules and procedures were brought in, culminating at the end of the Brexit transition period. It sets out and illustrates the various immigration stamps and vignettes (stickers) placed in non- EEA nationals' passports, and highlights frequent issues associated with them. It also provides practical examples to help with identification and understanding of these endorsements. Since the completion of the rollout of Biometric Residence Permits ( BRPs) and Short Stay Permits ( SSPs) across all categories of entry clearance and leave to remain (see Practice Note: Biometric Immigration Documents), the only passport endorsements given to non- EEA nationals by UK immigration authorities that actually confer leave to enter or remain are the leave to enter stamps an Immigration Officer may issue at a port of entry. No other...

This document contains searchable quick links to PDF copies of the JCT 1998 standard form contracts. Inside this file are searchable shortcuts linking to PDF versions of the JCT 1998 standard-form contracts......

Prosecutor’s appeal against adverse rulings This Practice Note addresses the prosecution’s entitlement, under Part 9 of the Criminal Justice Act 2003 ( CJA 2003), to challenge unfavourable rulings made by the Crown Court in trials on indictment. By virtue of CJA 2003, ss 57–74 ( Part 9), the prosecution may appeal an adverse ruling of a Crown Court judge relating to a trial on indictment. The appeal is to the Court of Appeal and may proceed only with leave from the trial judge or the Court of Appeal. Such appeals fall into two principal categories: the general right to appeal a Crown Court ruling, and the right to appeal evidential rulings that materially weaken the prosecution case—the relevant provisions are not yet in force This Practice Note concerns only the first category of appeal. The prosecution has no right to appeal a...

This Practice Note explores the principal distinctions between institutional and ad hoc arbitration, as well as the areas where they coincide... Differences and overlaps between institutional and ad hoc arbitration An institutional arbitration is run by an arbitral institution chosen by the parties and proceeds under that institution’s arbitration rules. Some of the major international arbitral institutions include: London Court of International Arbitration ( LCIA) International Court of Arbitration of the International Chamber of Commerce ( ICC) Stockholm Chamber of Commerce ( SCC) Arbitration Institute Singapore International Arbitration Centre ( SIAC) Hong Kong International Arbitration Centre ( HKIAC) International Centre for Dispute Resolution ( ICDR) attached to the American Arbitration Association ( AAA) Swiss Arbitration Centre ( SAC) Other commercial arbitration institutions have emerged, particularly across the Middle East and Asia- Pacific. Among these, the following are covered by...

This Practice Note considers the enforcement options available to lenders where they hold fixed security. It specifically addresses: the choices open when commencing enforcement action, and a list of key points to consider when enforcing against particular asset categories In practice, secured creditors typically seek to ensure that the greatest possible proportion of their security is fixed. However, achieving fixed security over every asset class is usually impracticable, as the level of control required to maintain a fixed charge can be inconsistent with the borrower operating its business effectively—for example, stock and cash held in current accounts. Accordingly, a lender will often take a debenture to permit both fixed and floating security across all of the company’s assets. A debenture may include legal and/or equitable mortgages over land and shares, fixed charges on assets such as cash deposits and goods and chattels, assignments of...

Development of the First Tier Tribunal for Scotland The Scottish Government’s Access to Justice Policy, prepared by the Cabinet Secretary for Justice within the Justice Directorate, seeks to: support individuals to settle disputes outwith court deliver a modern, up-to-date justice system broaden access to justice, and make the Tribunals system user-friendly (see the First-tier Tribunal for Scotland Housing and Property Chamber procedures consultation) As set out in the Housing ( Scotland) Bill, the intention is to create a forum that is less adversarial than the courts and could remove the necessity for legal representation. There is, crucially, a recognised need for more efficient, specialist routes into the justice system for both tenants and landlords. To achieve this, proposals recommended simplifying the tribunal landscape by bringing Scotland’s various tribunals under a single umbrella, safeguarding their independence from the Scottish Government, and embedding consistent practices and procedures (see: Access to Justice...

In December 2017, FIDIC released the second editions of the Red, Yellow and Silver Books. Three years later, in December 2022, FIDIC issued reprints. The 2022 reprint of the FIDIC Silver Book should be referred to as ‘ The Conditions of Contract for EPC/ Turnkey Projects Second Edition 2017, reprinted 2022 with amendments’, and it retains the same ISBN The amendments comprise: the errata published in December 2018 (see News Analysis: Errata to FIDIC 2017 contracts published) the additional errata released in June 2019, and further errata plus new amendments made in November 2022 (stated to take effect from 1 January 2023), which FIDIC describes as ‘improvements & clarifications in response to industry feedback + to support the increased use of 2017 contracts’ There is no requirement to use the FIDIC 2022 reprints. The Parties are free to select the original FIDIC 2017 books if...

A definition of expropriation In the setting of investment treaty arbitration, expropriation arises where a state appropriates the property of a foreign investor and payment of compensation is required. A central safeguard found in almost all bilateral investment treaties ( BITs) and multilateral investment treaties ( MITs) is the bar on expropriation (or nationalisation) unless adequate compensation is provided. Yet the drafting of many treaties offers scant, express direction on what, precisely, is meant by expropriation. Consequently, numerous investment treaty arbitration tribunals have wrestled with drawing the boundaries of what amounts to a “taking” of property and identifying the minimum elements of what qualifies as “adequate” compensation. The effort to craft a stable definition is further hindered by the reality that the clauses in BITs are alike, though not the same. These fine textual variations have, in several investment treaty awards, become the subject of close...