Legal Practice Notes

Non-discrimination and Article 24 of the OECD model convention Non-discrimination, as a concept, is generally used to describe the avoidance of one person being treated more harshly than another, typically on grounds that are agreed to be unjustified, in situations where those persons are regarded as being in comparable circumstances. Article 24 of the Organisation for Economic Co-operation and Development ( OECD) model tax convention ( OECD MTC) is concerned with removing tax discrimination by setting out specific protections that apply to particular groups of persons, shielding them against particular categories and types of tax-related discrimination within the convention......

Independent contractors At times, premises may remain hazardous owing to defective construction, maintenance, or repair undertaken (or still in progress) by independent contractors. In other cases, such contractors are brought in to fix a risk yet do not succeed. The issue then arises: is the occupier responsible for injury suffered by a visitor as a result? As a general rule, unless the agreement under which the occupier has engaged the services states otherwise, the occupier will not be liable, under the Occupiers’ Liability Act 1957 ( OLA 1957), for negligence committed by independent contractors operating on the premises. Note that the pertinent rule, OLA 1957, s 2(4)(b), is confined to construction, maintenance, or repair works. The occupier bears the burden of showing that an independent contractor was in fact instructed. In other words, the occupier must demonstrate that the contractor was retained to act......

Pre-application—finding out about proposals Before a planning application is lodged, an objector can learn more about a proposed development by: Reviewing the relevant local planning authority’s ( LPA) online planning register. Most registers can be searched by property address, and many LPAs include records of pre-application discussions with developers. These entries may set out what is planned for the site, the current stage of the proposal, and details of the developer. The register might also show previous applications for the site—which can sometimes provide helpful reasons why earlier development was judged acceptable or unacceptable. Submitting a request under the Freedom of Information Act 2000 and/or the Environmental Information Regulations 2004, SI 2004/3391 in relation to the proposal. This can reveal pre-application discussions and correspondence that could support the preparation of an objection. See: Freedom of...

Grounds for objecting to inspection In general, a party is entitled to inspect documents that: have been disclosed to them under CPR 31.3—for general guidance on inspection, see Practice Note: Disclosure—inspection are referred to in a statement of case, a witness statement, and the like—for further detail, see Practice Note: Disclosure—inspection— Inspection of documents referred to in statements of case, witness statements are identified in an expert report under CPR 35.10(4)—for additional guidance, see Practice Note: Disclosure—inspection— What can be inspected? Nonetheless, there are instances where the disclosing party is obliged or entitled to refuse inspection of certain documents under CPR 31.3(1)(b) and CPR 31.19(3). Grounds for resisting inspection include: irrelevance rendering the documents not disclosable—for more detail, see Practice Note: Disclosure—standard disclosure and the reasonable search loss of the disclosing party’s control over the...

What is novation? Novation describes the passing of a contracting party’s rights and duties to a third party. In effect, one party to the agreement (the ‘outgoing party’) is replaced by another (the ‘incoming party’); in legal terms, the original agreement is discharged, amounting to the extinguishing of that contract and the creation of a new contract under which the same obligations must still be performed, albeit by different participants. Novation is not the same as assignment: an assignment transfers only the benefits of a contract, whereas novation moves both the benefit and the burden to the incoming third party. Contractual benefits cover the right to have the contract performed; burdens comprise obligations such as carrying out the duties and making payments due under the contract. In practice, the incoming party takes over performance in place of the outgoing party. See Practice Notes:...

ARCHIVED This archived Practice Note sets out guidance on notices to admit facts under CPR 32.18. In particular, it outlines what a notice to admit is, what it can be used for, how notice is given using Form N266, whether there are any time limits for serving the notice to admit on other parties, and how to respond to such a notice. It is not maintained and is provided for background information only. For further discussion of notices to admit facts, see Practice Note: Evidence—status, use and admissibility of witness statements and proving other factual matters— Notices to admit facts. What is a notice to admit facts? Put simply, a notice asks the other side to admit facts in the case. The aim of such a notice is to save time and, importantly, costs, because a party need not go to the expense of proving...

A notice of intended prosecution ( NIP) is a formal alert, typically issued by the police authorities, indicating that proceedings are being contemplated against an individual. Its purpose is to afford that person an opportunity to collect and preserve evidence in support of their case. The requirement to notify in road traffic cases Under the provisions of the Road Traffic Offenders Act 1988 ( RTOA 1988), s 1, for certain offences: the defendant must have been advised at the time of the possibility of prosecution for the offence; or the defendant must have been served with a summons within 14 days of the offence; or a notice of the possibility of prosecution must have been sent by the prosecutor within 14 days of the offence, either to the driver or to the registered keeper of the...

The principles of the notarial act are that it is: the notary’s own act, and expressly not that of the parties named in the document an official record of a fact, event, or transaction set out in documentary form, irrespective of the format adopted by the underlying document, fact, event, or transaction The notarial act serves to provide authentication by means of documentary evidence that will be accepted in the receiving jurisdiction where it is intended to be used......

This Practice Note explores the use of Norwich Pharmacal orders in cross border disputes. For guidance on: the principles of Norwich Pharmacal orders, see Practice Note: Norwich Pharmacal orders ( NPOs) making an application for a Norwich Pharmacal order, see Practice Note: Norwich Pharmacal orders—making an application Norwich Pharmacal relief in support of foreign proceedings For many years, it was assumed that Norwich Pharmacal relief was obtainable in support of existing or prospective foreign proceedings without the Evidence ( Proceedings in Other Jurisdictions) Act 1975 ( E( POJ) A 1975) presenting any barrier. In Shlaimoun v Mining Technologies International Inc (2011), the judge did not regard the statutory scheme under E( POJ) A 1975 as excluding Norwich Pharmacal relief. Instead, he took the view that the Act and the Norwich Pharmacal jurisdiction offered parallel or complementary routes to obtain documents later deployed in foreign...

This Practice Note outlines the court’s discretionary power under section 51 of the Senior Courts Act 1981 ( SCA 1981) to make a non-party costs order ( NPCO), meaning a costs order granted for or against someone who is not a party to the case. It summarises the Court of Appeal’s approach in Deutsche Bank v Sebastian Holdings (2016) to the operation of CPR 46.2 on NPCOs. It also gives guidance on the requirement to alert a third party to any intended NPCO application and on the necessity of adding that third party to the proceedings. In addition, this Practice Note explains the matters the court will evaluate when determining an NPCO application, including whether causation is a prerequisite... Non-party costs orders—application Non-party costs orders—company directors and shareholders Non-party costs orders—funders Non-party costs...

This Practice Note It sets out how NHS charges are recovered, covering applications for certificates, payment of sums due, and routes to request a review or lodge an appeal against an NHS charges certificate. It explains how to apply for a certificate, settle NHS charges, and the steps to seek a review or bring an appeal where that is required. It further addresses procedures where contributory negligence arises and where more than one compensator is involved. Where an injured party obtains compensation following an accident, the NHS may reclaim the costs of that person’s NHS hospital care and any associated ambulance charges. Responsibility for collection rests with the Compensation Recovery Unit ( CRU), which then reimburses the appropriate hospital or ambulance provider. The scheme is designed so that monies recovered by the CRU flow straight to the NHS and/or the ambulance trust that...

In finance transactions, the expressions ‘netting’ and ‘set-off’ are often treated as if they are identical, although they are distinct concepts. The overlap arises because both netting and set-off can deliver the same economic result for the parties. This Practice Note outlines the distinction between netting and contractual set-off and indicates how netting is typically employed in commercial finance transactions. What is set-off? To grasp netting, it helps first to consider set-off, particularly contractual set-off. Set-off is the satisfaction of mutual monetary obligations, whereby one sum is discharged to the extent of the other. A right of set-off permits one party ( Y) to apply the amount owed to it by the other party ( X) against the amount it owes that other party ( X), allowing Y to reduce or eliminate its liability to X, e.g. contractual set-off arises where a right of set-off is...

NOTE—for guidance on whether notification thresholds in Nepal and across the globe are satisfied, refer to: Where to Notify. 1. Have there been any recent developments regarding the Nepalese merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Nepal? The Competition Promotion and Market Protection Act, 2007 (2063) ( Competition Act) oversees competition in Nepal, protecting markets from monopoly and regulating controlled market practices. The Competition Promotion and Market Protection Board ( Competition Board) is the competent authority, tasked with addressing monopolistic conduct and supervising controlled market practices. The merger control provisions remain unamended, and no changes are expected in the near future. 2. Under the Nepalese merger control law, is the control test the same as the EU concept of ‘decisive influence’? If not, how does it differ and what is the...

This Practice Note outlines the duty of care owed by valuers and the scope of their potential liability to purchasers, vendors and mortgagees for erroneous valuations. It considers the permissible margin of error, the measure of damages, claimants’ contributory negligence, and efforts to exclude liability. It does not address a valuer’s liability when acting within an expert determination or an arbitration. For general guidance on arbitration and expert determination, see: Settlement and settling disputes for property disputes lawyers—overview. Duty of care A valuer appraises or determines the value of property, or sets a price for it. In performing that task, a valuer must exercise reasonable care and skill. This obligation is typically an express or implied term of the contractual retainer, but it also arises independently in the tort of negligence......

Practice Note: negative declarations This Practice Note examines negative declarations. It first addresses what a negative declaration entails, then the High Court’s jurisdiction to grant one. It next outlines the court’s approach, sets out the principles guiding the decision whether to grant such relief, and offers guidance on making an application for a negative declaration. What is a negative declaration? A declaration is, in essence, a formal statement issued by the court at a party’s request. This may concern the parties’ rights in a dispute, whether certain facts exist, or a rule of law. For general guidance on declarations, see Practice Note: Declaratory relief. A negative declaration is the declaratory remedy expressed in negative terms. It is an uncommon form of relief because it effectively flips the parties’ conventional positions. As noted by Lord Woolf in the Court of Appeal in Messier‑ Dowty Ltd v Sabena SA...

Termination The NEC contracts set out detailed termination provisions, identifying when parties may terminate and the resulting effects and procedures, though they are less far-reaching than those included in JCT contracts. Under NEC, it is the Contractor’s obligation to Provide the Works that is ended, not the contract, and this deliberate distinction ensures, as intended by the drafting, that post-termination provisions continue to operate. Even once that obligation ends, in some circumstances specified by the contract the Contractor must reimburse the Client for additional costs of completing the works. This Practice Note addresses clauses in the NEC3 and NEC4 Engineering and Construction Contract, with comparable terms across other NEC contracts, and should be read with Practice Note: Termination of a construction contract to provide context. For termination guidance under the NEC Professional Service Contract and the NEC Supply Contract, see the respective Practice Notes: NEC...

This Practice Note explores key points where the NEC3 and NEC4 standard-form construction contracts diverge from the JCT 2016 and 2024 suites. It also identifies provisions missing from the NEC forms that appear in the JCT counterparts. Unless stated otherwise, this Practice Note concentrates on the NEC3/ NEC4 Engineering and Construction Contract ( ECC) and the JCT Standard Building Contract With Quantities ( SBC) 2016/2024. Accordingly, the commentary is confined to core forms unless a departure is expressly noted, ensuring a like-for-like discussion between the ECC and the SBC across the 2016 and 2024 editions. Differences in approach NEC NEC contracts are primarily oriented to the engineering sector yet are designed to be adaptable and appropriate for both engineering and building works. The principal NEC form, the ECC, is intended for traditional, design and build, or management procurement routes (and the NEC4 suite now includes a...

Principles of natural justice If an adjudicator infringes the rules of natural justice during adjudication, a serious breach can render the decision a nullity. The principle has three familiar elements: no person should adjudicate their own cause a party must be told the allegations it faces and allowed a fair chance to respond a party is entitled to have its case determined by an impartial and unbiased tribunal In reality, disputes about the first of these are rare in construction adjudication. Should there be any indication that an adjudicator must rule on the propriety of their own behaviour, resignation would ordinarily follow. For guidance on an adjudicator’s resignation, see Practice Note: Resignation by the adjudicator. The courts have repeatedly outlined what amounts to a breach of natural justice, with leading Court of Appeal authorities including Carillion Construction v Devonport Royal Dockyard and Amec v...

NOTE—to check whether notification thresholds in Namibia and across the globe are satisfied, consult: Where to Notify. Introduction The merger control framework in Namibia is set out in Chapter 4 of the Namibian Competition Act 2 of 2003 (the Act) together with the merger control rules promulgated under the Act (the Rules). Competition Law in Namibia is implemented through coordinated efforts of several authorities, namely the Namibian Competition Commission ( Commission), the Minister of Industrialisation and Trade ( Minister), and the Namibian High Court. Where the applicable financial thresholds are reached, merger filings are compulsory and must be submitted to the Commission. The Minister may, on application, review decisions of the Commission. Under section 42 of the Act, a ‘merger’ arises where one or more undertakings, directly or indirectly, obtain or create direct or indirect control over all or part of another...

FORTHCOMING CHANGE On 27 October 2025, the Renters’ Rights Act 2025 obtained Royal Assent. For guidance on the Act’s effect on residential tenancies in England, see Practice Note: Renters’ Rights Act 2025—key provisions. This Practice Note sets out mortgagee possession claims, including the mortgagee’s right to seek possession and their duties once in possession, the mortgagor’s right to request time to pay under the Administration of Justice Act 1970, the position of any tenants of the mortgagor, the pre-action protocol, and the process for bringing a claim. For guidance on the range of remedies available to mortgagees, see Practice Note: Mortgages and land—enforcement of mortgages and legal charges over land. The right to possession Where a mortgagor has fallen into default, the mortgagee will often wish to sell the property and may first need to secure possession. However, it is also possible to: sell without taking...