Legal Practice Notes

The way land is used and occupied commonly relies on the land enjoying easements—for instance, a right of way or a right to drain. Such rights might be created by express grant, arise by long use (prescription), or be implied into the land’s original transfer. As ownership or patterns of use shift over time, it is often necessary to assess the character and scope of any easements that have been conferred or obtained. A buyer will want assurance that the easements benefiting the property are adequate for their particular requirements. Conversely, the owner of servient land may contend that a fresh or intensified exercise of an easement by the dominant tenement amounts to ‘excessive user’. There is no universal rule for construing easements; each dispute is determined on its own facts. That said, where an easement has been expressly granted, the primary...

This Practice Note offers practical guidance on managing document production in international arbitration proceedings. It covers the two principal pathways by which documents are produced: the production of documents in reply to a request for production (or request(s) to produce), the voluntary production of materials accompanying the parties’ written submissions, including their pleadings (statements of case), witness statements and/or expert reports. As every arbitration differs, practitioners should assess any case-specific features that may influence document production. Throughout, it refers to soft law and arbitration rules that can inform or illustrate how production commonly occurs, with particular emphasis on the IBA Rules on the Taking of Evidence in International Arbitration. It reflects the latest version of the IBA Rules, issued in December 2020. Related Practice Notes of interest include: The role of documentary evidence in arbitration Disputes over documentary evidence in...

An order for delivery up is a form of mandatory injunction that requires the return, within a specified timeframe, of documents or other property improperly removed from the employer. Applications for such relief may include: Delivery up under CPR 25 and section 4 of the Torts ( Interference with Goods) Act 1977, where the defendant is alleged to have wrongfully interfered with goods owned by the claimant (delivery up of goods) Delivery up of assets belonging to the defendant where there is concern they may attempt to evade enforcement of a judgment Preservation of property pursuant to CPR 25 When to apply Delivery up orders, search orders and freezing orders are generally pursued as an interim remedy, as matters for the employer are often urgent. Delay in seeking such orders can lead to the permanent loss or destruction of the items...

Practice Note This Practice Note sets out guidance on interest on costs orders awarded to the receiving party. It explains who may recover interest, the date from which interest runs, and the rate of interest. It also considers when interest is payable, the circumstances in which it can be suspended, when the court may disallow interest, and the position on interest where a costs order has been successfully appealed. It also outlines the provisions governing interest in the High Court and the County Court, noting differing requirements. For detailed guidance on payment and enforcement of costs orders, see Practice Note: Costs orders—payment and enforcement. For guidance on interest on costs involving foreign currency, see Practice Note: Cross-border disputes—costs considerations......

Engaging counsel to represent a client calls for careful, considered planning and thorough preparation. Counsel’s function is to deliver impartial, objective guidance and to exercise the craft of advocacy for the client. While they work within the wider team, they also reinforce and augment the advice first given by the instructed solicitor, adding a valuable independent perspective throughout the matter. This Practice Note explains how to brief counsel so the client secures the greatest possible advantage from their involvement... Choosing counsel and reasons to instruct Keep a curated and frequently updated list of approved counsel at hand. In family work, what is often described as a strong ‘bedside manner’ is especially significant. Clients may feel extremely vulnerable, and the presence of a dazzling yet curt professional could be entirely unsuitable for that client. You may need to consider instructing leading counsel; in some cases, leading...

What is the Gazette? The Gazette offers an enduring, authoritative public record of significant statutory and non-statutory notices that can underpin legal and other procedures. Every notice is available via a single website, regardless of whether it first appeared in the London, Edinburgh or Belfast edition. In certain cases, insolvency law requires specific notices to be lodged at Companies House and published in the Gazette. Accordingly, it can be sensible to carry out searches at both Companies House and the Gazette. For more information on insolvency searches at Companies House, see Practice Note: What do insolvency searches at Companies House reveal? When are notices published in the Gazette? A notice in the Gazette will be placed on the Gazette website and in the particular edition (ie London, Edinburgh or Belfast) you choose......

Applicable legislation Limited partnerships are established under the Limited Partnerships Act 1907 ( LPA 1907). The Partnership Act 1890 ( PA 1890), together with equitable principles and the common law relating to partnerships, also governs limited partnerships, so far as consistent with the LPA 1907... A limited partnership, like a general partnership, does not possess separate legal personality ( Re Barnard, Martins Bank v Trustee)... Insolvency law generally treats limited partnerships in the same way as insolvent general partnerships. The Insolvent Partnerships Order 1994 ( IPO 1994), SI 1994/2421, aligns the insolvency treatment of general and limited partnerships. Nonetheless, the IPO 1994, SI 1994/2421 contains certain adaptations that are specific to limited partnerships. These reflect that, for insolvency purposes, a general partner is dealt with under the same rules as a general partner in an ordinary partnership, whereas tailored provisions apply to the limited partner due to the...

What are expenses? All fees, costs, charges and any other outgoings arising during a winding up ( Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, rr 6.42 and 7.108), administration ( IR 2016, SI 2016/1024, r 3.50) or bankruptcy ( IR 2016, SI 2016/1024, r 10.148) are treated as expenses of the relevant winding up, administration or, as applicable, the bankruptcy... For liquidation and bankruptcy, the applicable provisions are IR 2016, SI 2016/1024, r 6.42 (creditors’ voluntary winding up), IR 2016, SI 2016/1024, r 7.108 (winding up by the court) and IR 2016, SI 2016/1024, r 10.149 (bankruptcy). As many of these provisions are framed in almost identical terms, the following observations apply across all three rules. Whether spending by a liquidator or a trustee in bankruptcy (trustee) qualifies as an expense of the liquidation or the bankruptcy is not a matter over...

Opening proceedings When insolvency proceedings are begun, each route has its own procedure for service of the requisite documents. The positions for bankruptcy, compulsory liquidation and administration are outlined below. Bankruptcy Where a creditor presents a bankruptcy petition, it must be personally served by that creditor (or someone acting for them) on the debtor, unless the court orders substituted service. This is addressed in paragraph 1 and the table at the end of the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, Schedule 4. Service is commonly effected by the petitioning creditor, their solicitor, or authorised agent delivering a sealed copy of the bankruptcy petition to the debtor. The petition must be served at least 14 days before the first hearing, save where the court treats it as an expedited petition because: the debtor has absconded the court is satisfied the case merits an...

Initial Disclosure This Practice Note reviews the supply of Initial Disclosure alongside a party’s statement of case under the Disclosure Scheme operating in the Business and Property Courts ( B& PCs) pursuant to CPR PD 57AD. It addresses what has to be given, the duties on the party, and the stance adopted by the court when the relevant requirements and duties are not satisfied. It further looks at the position concerning parties beyond England and Wales. The Disclosure Scheme took effect on 1 October 2022 following a disclosure pilot scheme. Decisions arising under the pilot continue to carry weight and are referred to below. The provisions governing Initial Disclosure appear in CPR PD 57AD, para 5. Nothing in that paragraph alters the effect of CPR PD 16, para 7.3, which identifies the documents to accompany the particulars of claim where the claim relies on a...

Practice Note This Practice Note sets out the requirements for applying for an order to obtain information from a judgment debtor—formerly termed an ‘oral examination’—including the criteria for making such an order, the procedure, hearing arrangements, and the steps available if the debtor does not comply. This order assists enforcement rather than constituting an enforcement method. For practitioners contemplating enforcement, a recurring difficulty is limited knowledge of the respondent’s (debtor’s) income or assets. One option is to seek an order compelling the debtor to be questioned about their income, assets and liabilities. The previous expression ‘oral examination’ has been replaced by applications for orders to obtain information from judgment debtors (known as ‘information hearings’), following the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, 33.23, which imported the Civil Procedure Rules 1998 ( CPR), SI 1998/3132, Pt 71 into family...

Sharing parental responsibility More than one person may hold parental responsibility for a child at the same time. One parent’s responsibility does not end merely because another person gains it. If those sharing responsibility cannot agree on how it should be exercised, the matter may need court resolution via an application for a specific issue order or a prohibited steps order. See Practice Notes: Specific issue orders and Prohibited steps orders. The right of independent action When responsibility is shared, each holder may generally act independently, without the others, unless an enactment requires consent for a matter affecting the child. This ability to act alone is limited where any step would conflict with an order concerning the child under the Children Act 1989 ( Ch A 1989). Wardship likewise constrains the exercise of parental responsibility......

This Practice Note sets out: the concept of branch incorporation relief available under UK domestic law in relation to: corporation tax on chargeable gains — see: Branch incorporation relief for chargeable gains, and corporation tax within the intangible fixed assets ( IFA) regime in Part 8 of the Corporation Tax Act 2009 — see: Branch incorporation relief for IFAs the wider UK corporation tax relief on the incorporation of an EU branch following implementation of the Mergers Tax Directive 2009/133/ EC, and some practical points and further tax issues that arise on branch incorporation Relief cannot be claimed under both the branch incorporation provisions and the rules implementing the Mergers Tax...

Where a lease contains no express repairing covenant, each party’s responsibility for repairs is curtailed. For landlords, liability is shaped by a mix of common law principles and statutory regimes; for tenants, it turns on the doctrine of waste and the implied duty to use the premises in a tenant‑like fashion. This Practice Note outlines those obligations and sources, addressing: what constitutes waste the distinct categories of waste the consequences if a tenant permits the property to decline the meaning of use in a ‘tenant-like manner’ Landlord's repairing obligations The landlord bears repairing duties only to the extent required by any express terms in the tenancy (in relation to which, see Practice Note: What is the appropriate standard of repair?)......

What are growth shares and are they appropriate? Growth shares—often called value shares or hurdle shares—form a distinct class of share with limited rights. Those rights are structured so that employees share solely in increases in the company’s value arising after an acquisition. In essence, they are crafted to reward value created after the relevant acquisition event, rather than historic worth. For a fuller explanation of the principal characteristics of growth shares, and the typical circumstances in which a company adopts them, see Practice Note: Growth shares (value shares). Key features of growth shares In outline, growth shares: These rights and mechanics are embedded in the company’s constitutional documents and supporting agreements. Are created and designated in the company’s articles of association as a separate class, distinct from the existing share capital; Are allotted to selected employees; and Are governed by the articles and, in...

Once the parties conclude that mediation is a suitable route to resolve their dispute, or where the court directs them to consider it, their solicitors will take responsibility for arranging and setting up the mediation. This Practice Note addresses identifying and selecting a mediator, outlining the steps to find and choose an appropriate candidate, including what to do if consensus cannot be reached. Ordinarily, the parties jointly, and by consent of all parties, agree on a mediator; if agreement on the appointment proves elusive, a neutral third party—such as an organisation delivering alternative dispute resolution ( ADR) services—may make the appointment on their behalf. Requirements may vary by the court handling your case, so be alert to any extra provisions—see: Court specific guidance. For details of mediator’s fees and other mediation expenses, see Practice Note: Mediation costs—liability and recovery. For an overview of the lawyer’s role in...

This Practice Note examines the court’s status as a public authority for the purposes of the Human Rights Act 1998 ( HRA 1998), and the implications for judgments addressing relationships between non-state persons (private individuals)—the so‑called horizontal effect of Convention rights. Horizontal effect of the European Convention on Human Rights The UK was among the first signatories to the European Convention on Human Rights ( ECHR, also known as the Convention), yet before HRA 1998 the ECHR was treated merely as an international treaty, not directly enforceable by private individuals against each other in the domestic courts. Its aim was to protect fundamental rights from state interference, ie ‘vertical effect’. When HRA 1998 came into force in 2000, it deliberately and significantly altered this position; however, it made no specific provision for the enforceability of Convention rights between private individuals. Section 6(1) HRA...

This Practice Note looks at how to obtain official copies of the registers and plans maintained by HM Land Registry ( HMLR) in respect of individual registered titles relating to freehold and leasehold land in England and Wales. It sets out how to obtain official copies where you have only: the title number or the property’s address the property’s location, or the name of the registered proprietor Property practitioners ought, as a matter of routine, to secure up-to-date official copies of all relevant title documents at the outset of a property transaction. Practitioners in other areas may likewise find it helpful or necessary to obtain official copies when involved in transactions concerning property......

Highways not maintainable There exist a handful of highways for which no party bears any duty to maintain them at all in law. This arises only in very unusual cases where a landowner has dedicated a route as a highway, yet it has neither been adopted nor had responsibility for upkeep defined. In such a case, many wrongly assume the maker or dedicator of the highway becomes liable for maintenance and repair. That assumption is false. Where a way has been dedicated as a highway but not adopted, no one is responsible for its maintenance, as the dedicator is under no duty to maintain or repair it. Every other highway is maintained either at public expense, by a private company, or by one or more private individuals who, in most instances, prove to be frontagers or owners of the...

Statutory defence—section 58 The claimant bears the onus of proving a breach of section 41 of the Highways Act 1980 ( Hi A 1980), namely the duty to maintain the highway. If that breach is made out, the highway authority may invoke a statutory defence by showing it exercised such care as was reasonable, having regard to all the circumstances, to make the relevant part of the highway safe. For that defence, the burden of proof rests with the defendant accordingly......