Legal Practice Notes

This Practice Note explains when a rectification claim may be suitable, what you must prove to succeed, and which evidence may be admissible in support. What is rectification? Rectification is an equitable remedy intended to correct a document so that it reflects the parties’ true intentions. When contracting, the parties may have shared a common intention about the meaning of their agreement at the time of drafting, yet that intention is not captured in the wording; ie it diverges from the objective meaning of the contractual document as determined in accordance with the rules of contract interpretation (on which, more generally, see Practice Note: Contract interpretation—rules of contract interpretation). In those circumstances, a claim for rectification may be appropriate. As Hildyard J observed in Procter & Gamble v Svenska Cellulosa, the purpose of rectification is not to vary, modify or extend the bargain; it is to reform the...

This Practice Note outlines the regulatory obligations concerning anti-money laundering ( AML), counter-terrorist financing ( CTF) and counter-proliferation financing record keeping set out in the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017 ( MLR 2017), SI 2017/692, as amended. You should verify whether the MLR 2017 include any additional or altered requirements for your sector, and whether your regulatory body sets further, sector-specific expectations in relation to record keeping. If the MLR 2017 apply to you, you must establish and maintain appropriate, risk-sensitive policies and procedures relating to record keeping. Record keeping is a core element of the AML, CTF and counter-proliferation financing framework because it: demonstrates your compliance with regulatory obligations; and assists law enforcement agencies in carrying out financial...

This Practice Note This Practice Note explains what is needed for England and Wales to recognise a foreign marriage or civil partnership, addressing questions of validity and polygamous unions. Unlike the rules for acknowledging an overseas divorce or dissolution of a civil partnership, whether an overseas marriage or civil partnership is recognised has always been, and remains, a matter for the domestic law of England and Wales—both before and after 31 December 2020 (the end of the implementation period ( IP))—and is thus largely untouched by the UK’s exit from the EU ( Brexit). For practical assistance on recognising an overseas divorce or dissolution, see the Practice Notes: Recognition of overseas divorce or dissolution of civil partnership and Recognition of divorce and legal separation under the 1970 Hague Convention. For material on Brexit-related implications, consult the Practice Note: Family proceedings with EU...

Appointing a receiver offers creditors and certain other parties a means to safeguard their interests in a company’s assets. This note outlines the available forms of receivership and the key consequences of a receiver being appointed. For access to materials within the Receivership subtopic, refer to: Receiverships—overview. The following features apply across all receivership types: A company does not have to be insolvent to enter receivership Other creditors may still pursue claims despite a receiver being appointed During the receivership, the company’s dealings with property covered by the appointment are curtailed Receivership does not automatically lead to liquidation (the winding up of its affairs) Further points specific to particular receivership forms are outlined below. Law of Property Act ( LPA)/fixed charge receiver Under the Law of Property Act 1925 ( LPA 1925), a mortgagee may appoint an LPA...

This Practice Note explores the duty on contractors and consultants delivering services under construction agreements to apply reasonable skill and care in practice. It reviews the implied obligation under section 13 of the Supply of Goods and Services Act 1982 ( SGSA 1982) and considers express provisions requiring either ‘reasonable skill and care’ or ‘all reasonable skill and care’ to be achieved. It further assesses what difference the term ‘diligence’ makes when appended to the standard of care, when consultants or contractors face strict liability, and issues concerning fitness for purpose as applicable. It also points to other relevant material on the standards expected of contractors and consultants, including design responsibilities in particular, and fitness for purpose obligations in detail. Supply of Goods and Services Act 1982 SGSA 1982, s 13 provides that, in a relevant contract for the supply of a service where the...

ARCHIVED: This Practice Note has been archived and is no longer maintained. It examines restitutionary claims for quantum meruit (value of services) and quantum valebat (value of goods): the relevant principles, the situations in which such claims may arise, and how to assess the value of any benefit conferred in those cases. When is quantum meruit and quantum valebat relevant? Claims in quantum meruit (value of services) and quantum valebat (value of goods) may emerge in a wide range of circumstances, from gaps in contractual terms on payment to the absence of any contract at all ( Serck v Drake & Scull). For specific guidance on the interplay between quantum meruit/valebat claims and claims for unjust enrichment in the context of contractual relationships, see Practice Note: Unjust enrichment and contracts—failure of basis claims [...

This Practice Note outlines what constitutes a public to private ( P2P) deal and the relevant UK regulatory framework in brief. It also highlights particular matters a P2P can trigger under the City Code on Takeovers and Mergers (the Code) and addresses, among other things, directors’ duties. Public to private transactions Types of public to private transactions A public to private transaction (also referred to as a ' P2P' or a 'take-private' transaction) typically entails an offer for the entire issued share capital of a listed target company (the offeree) by a newly formed company established to act as the bidding vehicle ( Bidco), owned by a private equity firm and members of the offeree’s management team in tandem (the offeror). The offeree will ordinarily be de-listed (for example, from the Main Market or AIM) and ultimately re-registered as a private company. Generally, the private equity fund will take a...

Every public authority, when carrying out any of its functions, is subject to and must comply with the Public Sector Equality Duty ( PSED). The PSED is contained in section 149 of the Equality Act 2010 ( Eq A 2010). In performing their functions, public authorities are required to have due regard to the need, in particular, to: eliminate discrimination, harassment, victimisation and any other conduct prohibited by or under the Eq A 2010 advance equality of opportunity between persons who share a relevant protected characteristic and those who do not foster good relations between persons who share a relevant protected characteristic and those who do not Eq A 2010, s 149 replaced the earlier trio of standalone public sector duties on race, gender and disability equality ( Race Relations Act 1976, s 71, Sex...

Public nuisance The common law offence of public nuisance was abolished by section 78 of the Police, Crime, Sentencing and Courts Act 2022 ( PCSCA 2022) and supplanted by a statutory offence of intentionally or recklessly causing serious harm to the public. That said, the common law offence still technically applies to conduct committed before PCSCA 2002, s 78 took effect, or which began prior to PCSCA 2022, s 78 coming into force and continued thereafter. It is, however, highly unlikely that prosecutions will proceed under the common law. See: Public nuisance under common law. Common law public nuisance endures as a tort in civil law, and PCSCA 2022, s 78(8) states the statutory offence does not affect liability for that tort. Statutory offence of intentionally or recklessly causing a public nuisance Although PCSCA 2022 does not expressly use the term ‘public nuisance’ in its wording, it...

This Practice Note This Practice Note explains how the welfare principle in the Children Act 1989 ( Ch A 1989) applies within public children proceedings. It sets out the court’s discretion and the influence of the welfare principle alongside the welfare checklist. It also gives practical guidance on the paramountcy principle, the need to avoid delay, concurrent and twin-track planning, and early permanence (previously termed ‘fostering to adopt’). Ch A 1989 establishes a two-stage process, which may occur in the same hearing or over multiple hearings, before the court may exercise its discretion to make a care or supervision order: first, the court must consider the threshold criteria in Ch A 1989, s 31(2) second, the court considers the welfare principle This Practice Note focuses on the second, welfare, stage. The local authority must establish the threshold criteria before the court can reach the...

This Practice Note explores circumstances in which parties can resist disclosure and/or inspection of sensitive material on the basis of public interest immunity ( PII). It outlines the steps for advancing a PII claim and securing the court’s leave to withhold documents. Waiver of PII is also addressed here. This Practice Note should be read alongside Practice Note: Closed Material Procedure. What is public interest immunity ( PII)? A party may oppose the disclosure and/or inspection of a document where producing it would prejudice the public interest. That objection is characterised as reliance on PII, the ‘immunity’ describing the capacity to decline disclosure or to refuse permission for inspection of the material. It was formerly referred to as ‘crown privilege’. PII operates in both civil and criminal law settings. The ‘proper approach’ to PII, which deploys a three-stage test, is discussed in the...

The Human Rights Act 1998 ( HRA 1998) obliges public bodies not to behave in a manner that conflicts with Convention rights. A claim can only be brought if the body in question is a public authority. It is therefore crucial to identify what qualifies a body as a public authority for the purposes of HRA 1998. In some matters the answer is straightforward, yet in many others the position is more nuanced. In those circumstances it is necessary to look to guidance issued by the courts on what makes an organisation a public authority. Only bodies meeting this threshold face potential claims under the Act. Judicial guidance remains essential in borderline cases. The legislative background Section 6 of HRA 1998 states: Acts of public authorities (1) It is unlawful for a public authority to act in a manner that is...

Introduction In simple terms, a drain serves a single premises, while a sewer serves multiple properties. In the context of development, there are two distinct drainage systems to consider: Foul water: pipework that removes used foul water from buildings. Above ground this is known as sanitary pipework; below ground the pipes are called foul drains and foul sewers. Surface water: arrangements that convey rainwater from hard surfaces. The below-ground conduits are termed surface water drains and surface water sewers. Public sewers are in the ownership of the sewerage undertaker. Private sewers—now relatively rare due to legislative change—belong to the properties they serve. Any building operations on or near a sewer require the owner’s approval. Constructing over, or within 3 metres of, a public sewer demands written consent from the relevant sewerage undertaker. A sewer may need to be diverted, relocated, or...

Defining the primary victim A primary victim is a claimant who, as an active participant in the event, suffers psychiatric injury arising directly from that incident. Classes of primary victim Lord Oliver in Alcock v Chief Constable South Yorkshire set out three illustrations of claimants he would regard as primary victims: Direct involvement — The claimant was within the zone of physical danger when the accident occurred, or at the time reasonably believed they were personally at risk. Rescue — In White v Chief Constable of South Yorkshire Police, the House of Lords made clear that rescuers are not a special class of primary victim. A rescuer who assisted others after an accident will only be a primary victim if they were in danger, or reasonably thought they were. If a rescuer does not satisfy that test, they are treated as a...

Psychiatric conditions are complex. Mental health disorders are intricate. Individuals living with mental health difficulties are deemed vulnerable and so need tailored care and treatment to prevent self-harm and to avoid harm from others. Mental healthcare is costly. Managing psychiatric illness calls for funding, time and specialist skill, yet all three are in limited supply. NHS mental health provision is underfunded and short-staffed, resulting in some patients missing out on the standard of care and support they require in hospital, in primary care and across community services. When people with mental health needs are not properly supported and observed, avoidable injury may follow. Deficiencies in care can give rise to regulatory probes, complaints about services, performance issues, inquests and knotty medicolegal, ethical or hypothetical questions. Where a negligence claim is pursued, the claimant must demonstrate that the standard of care fell such that they...

The framework of the people with significant control ( PSC) regime The architecture of the people with significant control ( PSC) regime, first commencing on 6 April 2016, appears in Part 21A of the Companies Act 2006 ( CA 2006), as modified by sections 81–83 and Schedule 3 of the Small Business, Enterprise and Employment Act 2015, and by sections 44, 51 and Schedule 2 of the Economic Crime and Transparency Act 2023 ( ECCTA 2023). The PSC regime tackles opacity in corporate ownership, where historically records captured the legal holder but not always the beneficial holder of an entity’s shares. The PSC register supplies clearer, current details on who ultimately owns and controls companies and other bodies, and this data is publicly available via the central register maintained at Companies House. It aids prospective investors in evaluating whether to invest in a...

The initial application for provisional damages Where a claimant intends to seek provisional damages, this must be expressly and formally pleaded within the particulars of the claim. The statement of case ought to clearly include the request for provisional damages and set out the legal basis on which the award is pursued. Assessment of provisional damages The court will initially value damages on the premise that no deterioration will occur, yet stipulate that the claimant may make......

Balance of probabilities The claimant is required to establish, on the balance of probabilities, that the defendant was negligent or failed to comply with their statutory duties. Succeeding on the balance of probabilities means demonstrating that something is more likely than not. If the claimant’s material is as consistent with negligence as with its absence, or with breach of duty as with none, the claim will not succeed. Where the defendant has been convicted of an offence arising from the alleged negligent conduct, a rebuttable presumption arises that the offence was committed. In such a situation, the burden of proof is reversed. It then falls to the defendant to demonstrate, on the balance of probabilities, that there was no negligence......

Duty of care Section 41 of the Highways Act 1980 ( Hi A 1980) sets out the duty owed to users of the highway: the highway authority is obliged to maintain the highway. For practitioners, the key enquiry is whether a particular defect amounted to a danger to a pedestrian or any other road user likely to traverse that part. In Rider v Rider, the obligation was characterised as a duty to put and keep the highway in a state that does not subject those using it in the ordinary, expected manner to danger. The measure of dangerousness is objective, rather than a matter of personal view. Accordingly, as Steyn LJ explained in Mills v Barnsley Metropolitan Borough Council, the claimant’s burden is to demonstrate that the highway was in a condition dangerous to traffic or pedestrians, in the sense that, in the...

Relationship between causes of action for reputational damage claims which may provide alternatives to a defamation claim This Practice Note explores how other causes of action connected to reputational harm may operate as alternatives to a defamation claim. It examines malicious falsehood, misuse of private information, breach of confidence, contraventions of data protection legislation, harassment and negligent misstatement. Defamation remains the core route for safeguarding reputation. In essence, such a claim arises where material is communicated to third parties that diminishes the claimant in the eyes of reasonable members of the public, carrying an allegation capable of causing serious harm to their reputation, and where no defence in law applies. For further detail, see Practice Note: Defamation. In certain situations, it can be appropriate—and sometimes necessary—to pursue a different cause of action, potentially against a person other than the original publisher. Care is...