Legal Practice Notes

Form of covenant The tenant’s capacity to assign or underlet turns on the covenant contained in the lease. Careful analysis of the covenant is essential to identify whether it limits assignment or underletting and, if so, the scope of that limitation. No covenant Although uncommon in modern leases, some long residential leases impose no constraint on assignment or underletting other than notifying the landlord. Where no restriction exists, the tenant is at liberty to assign or underlet as it wishes. Absolute covenant A provision that wholly forbids any assignment or underletting is commonly called an absolute covenant. Such covenants are not modified by statute and therefore operate as a complete prohibition. Even so, the wording should be scrutinised to determine exactly what conduct is barred. The presence of an absolute covenant does not stop the tenant from requesting consent, nor the landlord from giving it (a party with the...

Under the Landlord and Tenant ( Covenants) Act 1995, tenants and any guarantors are automatically discharged from tenant covenants when the lease is assigned. By contrast, the Act provides no automatic release for landlords. Instead, on assigning the reversion, a landlord may ask its tenants, under sections 6–8, to be released from the landlord covenants; a former landlord that chose not to seek release, or missed the time limit, may apply when the reversion is next assigned. These statutory provisions apply only to new tenancies and therefore do not assist parties: to leases granted before 1 January 1996; or to leases granted after 31 December 1995 but under an agreement for lease, option, or court order made before that date Should the landlord seek release? It is not invariably wise for a landlord to pursue a release from covenants in a multi-let building or...

This Practice Note This Practice Note explains the rules that govern the assessment of fixed costs in land claims where proceedings were started before 1 October 2023. It outlines the method for calculating fixed costs, the further costs recoverable, and the expense of obtaining a judgment. Note that this Practice Note addresses the current fixed costs regime for land claims. From 1 October 2023, the earlier provisions and the relevant Tables for land claims were renumbered within CPR 45 or relocated to CPR PD 45. Nevertheless, the substantive provisions and the Tables themselves have not altered in terms of content at all whatsoever......

This Practice Note identifies several key and/or recent authorities addressing heads of loss frequently pursued in construction disputes, including defect claims, loss of profit, overheads and preliminaries, wasted management costs, the passing on of settled claims, and other instances. It is not a definitive compendium of all cases (and is centred on construction decisions rather than broad principles), yet it serves as a practical first port of call when assessing different claims. For guidance on factors that may need to be weighed when a party on a construction project is putting together the quantum of a claim, see Practice Note: Quantum in construction claims. That note draws out issues for routine contractual claims (for example, relating to loss and expense or suspension), as well as matters arising from breach of contract or negligence (ie a claim for damages). It considers the thresholds and tests for typical heads of loss, and...

Note— To check whether notification thresholds in Kenya and across the globe are met, see: Where to Notify. Kenya is also part of COMESA and the EAC, which run supra-national merger control systems. 1. Have there been any recent developments regarding the Kenyan merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Kenya? The principal law is the Competition Act, No. 12 of 2010 (the Act), also cited as the Competition Act, Chapter 504, Laws of Kenya, in force since 1 August 2011. The Competition ( General) Rules, 2019 took effect on 6 December 2019. The Competition Authority of Kenya ( CAK) has refreshed its Guidelines on Relevant Market Definition to incorporate globally mainstream concepts such as multi-sided markets and digital markets. In December 2023, the CAK released the...

Practice Note This Practice Note examines how the English courts approach the meaning and effect of a jurisdiction agreement (also referred to as a choice of court agreement) under English common law. It sets out the elements required for a valid jurisdiction agreement and the courts’ general method for construing these provisions. Matters addressed include whether a dispute falls within the clause’s ambit and how the jurisdiction promise interacts with the wider contract, covering separability and the position where the contract is alleged to be void or voidable. The Note also considers the courts’ approach to jurisdiction agreements contained in related contracts, as well as how conflicting jurisdiction provisions are handled. In addition, it reviews the use of jurisdiction clauses in an underlying contract for the purposes of settlement disputes, and the effect of an English law clause where no...

Interested parties In the context of judicial review, an interested party refers to any person—other than the claimant and defendant—who is directly affected by the claim. Where a judicial review claim is connected to proceedings in a court or a tribunal, every other party to those proceedings will qualify as an interested party in the review; eg if a defendant in a criminal case in the Magistrates or Crown Court brings a judicial review of a decision in that case, the prosecution must always be named as an interested party in the judicial review claim. A person is regarded as directly affected if they are affected without the intervention of any intermediate agency, that is, without the involvement of any intervening body. For example, in R v Rent Officer Service, ex parte Muldoon, a local housing authority’s decision not to pay a housing benefit was...

In judicial review, noting that a document exists or once existed is usually achieved by the duty of candour, not by a formal disclosure process. Default lack of formal disclosure and inspection exercise By default there is no formal disclosure; it is not required unless the court directs otherwise. This is because judicial review turns on the legal consequences of mostly agreed facts; the court does not resolve factual disputes; and all sides owe a duty of candour to the court, so separate “disclosure” is unnecessary (though in practice the outcome is often similar). The same approach applies to judicial review, statutory reviews and appeals in the Administrative Court. The court retains a broad discretion to order disclosure, but that power will be exercised sparingly. General duty of candour All parties to judicial review are under a general duty of candour requiring them to reveal the...

The joint operating agreement ( JOA) contains several core commercial terms. Scope Broadly, the JOA’s scope is to set out the parties’ respective rights and obligations in relation to operations and activities carried out under the JOA, including joint exploration, appraisal, development, production and the disposal of petroleum products from, and the decommissioning of, the area of joint operations. The scope is established by identifying the activities that comprise the joint operations and, in parallel, by listing activities expressly excluded from that definition as ‘excluded activities’. Joint operations can be understood as the activities necessary to exercise the rights and fulfil the obligations that flow from the concession. Alternatively, the JOA may employ a more technical description of joint operations, aligned to the distinct operational elements of a typical petroleum project, namely exploration, appraisal, pre-development, development, production, disposal and...

This Practice Note outlines joint and several liability of co-debtors, identifies who may be pursued under each liability type, explains judicial treatment of a covenant not to sue, describes the effect of releasing debtors, and refers to the Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995). Joint and several liability Where a covenant is undertaken by two or more persons, they may be liable: joint several, or joint and several The nature of the liability is a matter of construction and turns on the parties’ intention as evidenced by the terms of the relevant document. The presumption, in the absence of express wording, is that liability is joint. An illustration of joint liability is two people who together are the tenant under a lease. An illustration of several liability is the liability of the original tenant and an...

Practice Note This Practice Note explains the process for adding a third party to financial proceedings under the Family Procedure Rules 2010 ( FPR 2010). It sets out when a third party might appropriately be joined by the court of its own motion, on the application of an existing litigant, or following an application by the third party itself, and identifies where responsibility for bringing any joinder application may rest. It also reviews judicial guidance on joining parties and highlights particular situations in which joinder can arise, including matters concerning trusts, business assets, or providers of litigation funding. It addresses when and by whom such steps should occur......

Practice Note This Practice Note examines when a court might permit the alteration of parties to proceedings—specifically, the joinder of a new party or the substitution of one party for another—after a relevant limitation period has expired (or may have expired). It cites section 35 of the Limitation Act 1980 ( LA 1980) and considers pertinent provisions of the Civil Procedure Rules ( CPR), notably CPR 17 and CPR 19.6, which address the addition of parties. It ought to be read alongside Practice Note: Limitation—amendments to statements of case, set-offs and counterclaims, which likewise deals with amendments to statements of case once the relevant limitation period has ended, with particular emphasis on adding or substituting new causes of action after expiry (and also setting out the position on limitation and counterclaims). For summaries of illustrative decisions, see the following Practice Notes: ...

Introduction It is a frequent practice for someone not domiciled in Jersey, yet owning movable assets located there—such as an offshore investment or a bank account—to put in place a separate Jersey Will to regulate the succession of those assets on death. Although preparing a distinct Jersey Will is not compulsory in these circumstances, doing so usually makes the administration of the relevant assets after death markedly more straightforward and efficient. Where a person dies leaving assets in Jersey with a value exceeding £30,000, the asset holder is legally obliged to require production of a Jersey Grant of Representation before releasing any funds. This will be a Grant of Probate if the deceased left a Will, or a Grant of Letters of Administration if they did not (the Jersey Grant). The Jersey Grant confirms who is legally entitled to administer the deceased’s Jersey...

Jersey Property Unit Trusts ( JPUTs) Many investors, notably those not resident in the UK, hold UK real estate investments through offshore unauthorised property unit trusts. These trusts are frequently formed in the Channel Islands (commonly Jersey or Guernsey) or the Isle of Man, though they can also be constituted under the laws of other non- UK jurisdictions. For the purposes of this Practice Note, such property unit trusts, wherever set up, are referred to as Jersey Property Unit Trusts ( JPUTs), given the prevalence of Jersey structures. JPUTs gained traction historically because UK real estate could be transferred into a JPUT without triggering stamp duty land tax ( SDLT). This relied on a specific exemption called ‘seeding relief’, which was abolished from 22 March 2006. Section 133 of the Finance Act 2016 introduced a different form of seeding relief, but it is...

This Practice Note examines how JCT contracts address dispute resolution, with most forms providing for mediation, adjudication and either court proceedings or arbitration, and also signposting direct negotiations. It also reviews the effect of the adjudication clause and the JCT Rules for Adjudication, for use with the JCT Building Contract and the Consultancy Agreement for a home owner/occupier. The Note chiefly considers the position under the JCT Design and Build Contract 2011, 2016 and 2024 ( D& B) and the JCT Standard Building Contract 2011, 2016 and 2024 ( SBC), while noting that similar provisions appear in the majority of other JCT building contracts. Overview of the dispute clauses Within the D& B and SBC, the dispute provisions are located in section 9. The drafting is, in essence, consistent across the 2011, 2016 and 2024 suites (but see ‘ Direct...

Practice Note This Practice Note reviews design obligations within the JCT suite of contracts—chiefly the Design and Build Contract ( D& B) and the Standard Building Contract ( SBC) where a Contractor’s Designed Portion applies (commonly termed a CDP). It also touches on the Intermediate and Minor Works forms. Across the JCT suite, the Contractor may assume design responsibility to different extents. The Employer can adopt a design and build procurement approach by selecting the D& B form, under which the Contractor undertakes completion of the entire design. Alternatively, using a traditional route, the Contractor may still carry design responsibility for a defined part by choosing a traditional form, such as the SBC, incorporating the optional CDP. This Practice Note explains how design responsibility is apportioned in the D& B and SBC forms, and examines additional key...

This Practice Note explains the treatment of variations across the principal JCT contract forms, setting out how such changes are managed and addressed in practice. For broader commentary on variations, with references to pertinent case law for context, see Practice Note: What is a variation on a construction project? The focus here is the JCT Design and Build Contract ( DB) and the JCT Standard Building Contract ( SBC) ( With Quantities). It addresses the 2024 editions of these forms, currently in issue. Where clause numbering diverges between editions this is flagged; otherwise, clause references are identical in both, aiding clarity. See also News Analyses: JCT 2024 Standard Building Contracts and Sub- Contracts released, and The JCT Design and Build Contract 2024—what’s changed? For details on how NEC contracts handle variations, consult Practice Note: NEC...

JCT 2016 standard form contracts This resource provides quick links to PDF versions of the JCT 2016 standard form contracts. For a comprehensive range of materials on the JCT 2016 contracts, consult the subtopic: JCT contracts 2016. For schedules of amendments covering some of the JCT 2016 contracts listed below, see Practice Note: JCT contracts— Schedules of Amendments......

This Practice Note ought to be read alongside Practice Note: Starting civil claims in the County Court, which addresses the general approach to commencing civil claims in the County Court. This Note explains where and how to issue a County Court money claim ( CCMC) under CPR 7. For guidance on issuing a claim in the County Court under CPR 8 (used where there is no substantial dispute of fact and for certain categories of proceedings), see Practice Note: Starting civil claims in the County Court— Where to issue CPR 8 claims in the County Court... What is a County Court money claim ( CCMC)? A money claim may pursue a specified or an unspecified sum ( CPR PD 7A, para 5.1(1)(b)) and includes a claim for damages—the CPR glossary defines damages as a ‘sum of money awarded by the court as...

ISDA documents The 1992 and 2002 ISDA Master Agreements (the Master Agreement) are standard form documents produced by the International Swaps and Derivatives Association ( ISDA). In this Practice Note, any reference to a Section of a Master Agreement or a Part of a Schedule should be read, unless stated otherwise, as a reference to the 2002 ISDA Master Agreement and its accompanying Schedule. For general background on negotiating ISDA Master Agreements, see Practice Note: Introduction to negotiating ISDA documents. What are Events of Default and Termination Events? Section 5 ( Events of Default and Termination Events) of the Master Agreement is divided into two components: Section 5(a) ( Events of Default) sets out the Events of Default; and Section 5(b) ( Termination Events) sets out the Termination Events. Events of Default are occurrences that permit one party to terminate any...