Legal Practice Notes

This Practice Note examines the most common route to enforcing an adjudication decision—issuing a Part 7 claim with an application for summary judgment in the TCC, as set out in section 9 of the TCC Guide. It also addresses the scope to secure enforcement by seeking a mandatory injunction, in appropriate cases, and the impact of a clause conferring foreign jurisdiction on adjudication enforcement proceedings. Although a Part 7 claim is the usual, and preferred, route to enforce an adjudicator’s decision, there are some infrequently used alternative avenues available. Parties may make an application to the TCC for declaratory relief under CPR Part 8 where a significant dispute of fact is improbable and no money judgment is pursued—see Practice Note: Adjudication and Part 8 proceedings. In certain cases it might be feasible to rely on insolvency proceedings to secure compliance with an...

There is no single, settled definition of the term ‘hedge fund’. Instead, the label functions as a broad catch-all for funds that do not fit neatly within other collective investment categories (eg authorised investment funds or private equity vehicles). Nevertheless, a set of traits is commonly and typically seen among so‑called hedge funds. Where these arise, they would usually, in practice, lead to a fund being treated as a ‘hedge fund’ rather than some other kind of investment fund. In practice, most hedge funds exhibit all, or at least nearly all, of the following characteristics: an open‑ended pooled investment structure a focus on delivering total return to investors a generally opportunistic approach the use of ‘short’ positions extensive leverage (ie borrowing) fee models comprising a fixed management charge and a variable annual performance...

1. Have there been any recent developments regarding the regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Burkina Faso? Law No. 016-2017/ AN on the Organisation of Competition in Burkina Faso was enacted on 27 April 2017 (the Competition Law), superseding the earlier Act. The Competition Law aligned the roles of national and regional competition bodies and raised sanctions for breaches of competition rules. The National Commission of Competition and Consumption ( Commission Nationale de la Concurrence et de la Consommation) ( NCCC) serves as Burkina Faso’s regulator and is tasked with enforcing the Competition Law. To our knowledge, there have been no recent changes to the regime, and no updates are expected over the next year. Likewise, there are no ‘hot’ merger control issues currently identified in Burkina Faso. Burkina Faso is also a...

Practice Note This Practice Note examines the court’s discretion to postpone a hearing under CPR 3.1(2)(b) and a party’s ability to seek such an adjournment. In particular, it identifies the five specific ‘ Fitzroy Robinson’ criteria the court will weigh when deciding whether to defer or bring forward a hearing, together with discussion of authorities in which the Fitzroy factors have been applied. It also addresses additional matters the court may take into account, including the timing of any adjournment request, and considers the ill-health of a party or witness and the medical evidence that must accompany an application advanced on that basis. For examples of court judgments illustrating the courts’ approach to applications to adjourn a trial, see Practice Note: —illustrative decisions. Depending on the court in which the proceedings are being conducted, the relevant court guide may contain further guidance that should be...

Practice Note This Practice Note describes the procedure for appointing or removing a guardian for a child. It identifies who will be respondents to the application, as well as any other persons who must receive notice of the proceedings. It also details the required application form and the rules on service. Any individual may apply to the Family Court to be named as a child's guardian. No permission is needed to issue the application. The court can, in any family proceedings, make an order appointing a person as a child's guardian even where no guardianship application has been made, if it considers such an order appropriate. This remains the case even if no one has applied for guardianship. This may lead to someone other than the applicant being appointed as the child's guardian. A child arrangements order ( CAO) naming the applicant as the person with whom the...

This Practice Note explores when a settlement agreement can be undone, covering questions of validity arising from capacity, mistake, illegality, fraud, so-called ‘sharp practice’, and duress. Challenging the validity of a settlement agreement If the soundness of a settlement embodied in a Tomlin order, or another consent final order, is disputed, and proceedings were already on foot before the settlement was reached, a party may apply within the extant proceedings to set aside the court order giving effect to the compromise under CPR 3.1(2)(p). That provision sits within the court’s general case management powers and allows the court to make whatever order is required for the proper management of the case and to promote the overriding objective. Under general principles of contract law, there are scenarios in which a settlement agreement is ineffective and can be set aside. Examples...

What is the Retail Energy Code ( REC)? The Retail Energy Code ( REC) sets the framework for the retail elements of the gas and electricity markets in Great Britain ( GB). It supports Ofgem’s Switching Programme and brings together, aligns and streamlines a range of retail obligations that were previously spread across different codes. For more on GB energy industry codes, see Practice Note: Industry Bodies and Codes— Great Britain electricity and gas market. The Switching Programme seeks to enhance customers’ experience of changing gas or electricity supplier, especially by enabling rapid switching. This accelerated switching model is delivered through the Central Switching Service ( CSS), which became operational in July 2022 and is run by the CSS Provider under the REC. Under its smart metering communications licences, the Data Communications Company ( DCC) must procure and provide the CSS and is,...

NOTE : On 2 December 2024, the Lord Chancellor confirmed a change to the discount rate, moving it to +0.5%. This +0.5% rate applies from 11 January 2025. Under Schedule A1 to the Damages Act 1996, further reviews must occur within five years of the conclusion of the prior review, which means the next review has to commence on or before 2 December 2029. Damages may be claimed for the period: from the date of death to the trial date — see Practice Notes: Quantifying damages for dependants—past losses—financial dependency Quantifying damages for dependants—past losses—services after the trial date, subject to any anticipated changes in the level of future dependency, eg the post-retirement period For cases prepared for a settlement meeting or...

The Freedom of Information Act 2000 ( FIA 2000) grants a public right to access information held by public authorities, including government departments, local institutions, educational institutions, publicly owned companies and other public organisations across England, Wales and Northern Ireland. Anyone—individuals, companies and foreign nationals—can request disclosure of any information held by such authorities. This Practice Note outlines common procedural pitfalls and issues that public authorities may encounter when dealing with freedom of information requests ( FOI requests). Requirements for a valid FOI request How much information needs to be included in an FOI request? Under FIA 2000, s 8, an information request must: be in writing provide the requester’s name and a contact address set out or describe the information sought The Information Commissioner’s Office ( ICO) interprets the written requirement broadly. In ICO decision FS50530703 it was determined that FOI requests made online or via social media...

Obtaining services dishonestly Under the Fraud Act 2006 ( Fr A 2006), it is an offence for a defendant to secure, by any dishonest conduct, services for which payment is required, intending to evade that payment. obtains for themselves or another person services dishonestly knowing the services are provided on the basis that payment has been, is being, will be, or could be required for them, or in respect of them intends to avoid payment in whole or in part The defendant must know the services are made available on a chargeable basis, or that they might be chargeable. Services offered free of charge are not caught by this offence. This offence may occur in circumstances that might otherwise be prosecuted under s 1 Fr A 2006, or may align more closely with making off without payment under section 3 of the Theft Act...

This Practice Note is primarily for brands looking to work with influencers on specific social marketing campaigns and advertising promotions aimed at the French public. Overview of the French regulations applicable to influencers A new law with international reach The French regime governing influencers and their public interactions with consumers on behalf of brands and companies (the ‘ Influencers Law’) is designed to prevent scams and abusive conduct on social networks. Since its adoption, for the first time, certain influencer activities are either prohibited or strictly controlled. The Influencers Law sets out a comprehensive legal framework for anyone promoting goods or services on their social platforms. The law applies whenever an influencer targets a French audience, thereby extending its scope to foreign influencers who engage with people in France. Ordonnance No. 2024-978 of 6 November 2024 amended aspects of the Influencers Law to ensure...

The time limits which apply to a complaint taken to the Financial Ombudsman Service ( FOS) are set out in Chapter 2 of the Dispute Resolution: Complaints ( DISP) sourcebook in the FCA Handbook. DISP 2.8.2 R explains that the FOS is not able to consider a complaint if it is referred later than: six months after the date the respondent firm sent its final response, redress determination (issued under a consumer redress scheme), or summary resolution communication (summary resolution communication as defined in DISP 1.5.4 R); and that response must inform the complainant of the six‑month time limit for taking the complaint to the FOS (see below); or six years from the event being complained about, or, if later, three years from when the complainant became aware (or ought reasonably to have become aware) that they had cause to...

This Practice Note This Practice Note explains the narrow circumstances in which the court may pause proceedings (whether or not there are concurrent proceedings in another jurisdiction) by exercising its inherent jurisdiction. It also outlines the relatively unusual situations in which the court may grant an anti-suit or Hemain injunction. The Brexit transition/implementation period concluded at 11pm on 31 December 2020, known in UK law as ‘ IP completion day’. For practical guidance on the implications of Brexit, see Practice Note: Family proceedings with EU connections—toolkit. The court has an independent role and responsibility to assess and determine whether it has jurisdiction. A party may seek a stay under the inherent jurisdiction by relying on the principle of forum non conveniens. This power pre-dates the Domicile and Matrimonial Proceedings Act 1973 ( DMPA 1973). The court exercises this jurisdiction with restraint, and its...

There is no restriction on a foreign creditor proving in an administration, liquidation or bankruptcy in England and Wales. Likewise, upon discharge from bankruptcy, an English debtor is, so far as the English court is concerned, freed from liability to foreign creditors. By contrast, under the so‑called Gibbs rule in English law (stemming from the decision in Antony Gibbs Sons v La Société Industrielle Et Commerciale Des Métaux), a foreign proceeding intended to extinguish a debtor’s obligations only releases those liabilities governed by the law of the country where that proceeding occurs, unless a creditor has submitted to the foreign process. In Re OJSC International Bank of Azerbaijan, the Court of Appeal, applying the Gibbs rule, refused to grant an indefinite continuation of the stay under article 21 of the Cross‑ Border Insolvency Regulations 2006 ( CBIR 2006), SI 2006/1030, which would have...

Whether a party can successfully rely on a force majeure clause hinges on the exact language used, the deal’s commercial setting and background, and the particular facts surrounding the asserted force majeure event and the alleged hindrance to contractual performance. For more detailed guidance, see Practice Notes: • Force majeure—consequences and contract discharge • Force majeure clause analysis—a practical guide. There is, however, some general direction that can be taken from the authorities, with the principal ones outlined below. For commentary on the doctrine of frustration, often examined alongside force majeure, see Practice Note: Discharge by frustration. ‘ Acts of God’ decisions are listed below... Case details and analysis Nature of dispute, key issues considered; Event; Result RTI Ltd ( Respondent) v MUR Shipping BV ( Appellant), 15 May 2024, Supreme Court, [2024] UKSC 18 News Analysis: LNB News...

Liability for flood management and drainage Traditionally, individual landowners bore primary responsibility for flood defences. It has, however, long been recognised that drainage works serve the wider public interest. Public authorities therefore have a crucial function in preventing and managing flooding for the benefit of communities. For any claim arising from a flooding incident, the first task is to identify the party or parties with duties relevant to the prevention of flooding. Potential liabilities and claims may arise across both private law and public law. This note addresses both areas. At the outset of any flooding event, the availability of insurance must also be considered. See Practice Notes: Flood insurance—overview of the market and Flood reinsurance—the Flood Re scheme. Potential responsible parties include: landowners riparian landowners public...

Floating charges are typically set out within a debenture, alongside other security interests such as fixed charges, assignments, and legal mortgages. Including a floating charge can deliver significant advantages to secured lenders (see Reasons for taking a floating charge below). This Practice Note addresses the following topics: the characteristics and nature of a floating charge the rationale for, and benefits of, taking a floating charge who is able to grant a floating charge principal considerations when taking a floating charge, and issues of perfection, priority and enforcement What is a floating charge?......

This Practice Note reviews the position on fixed costs prior to 1 October 2023 under Part 45. It outlines the purpose of fixed costs and the range of claim types and cost categories to which they apply. Note that the enlargement of the fixed costs regime took effect on 1 October 2023. For all civil claims, apart from personal injury and disease, the extended fixed costs framework applies (unless a case is expressly excluded) where proceedings are issued on or after 1 October 2023. For personal injury matters the extended fixed costs regime applies to cases where the cause of action accrued on or after 1 October 2023, and for disease claims the extended fixed costs regime applies to cases where the letter of claim was dispatched on or after 1 October 2023. For more detail, see Practice Note: Fixed...

Disputes frequently arise on construction projects over the level of care a contractor or consultant must exercise in relation to design. Typically, the contractor or consultant will seek to avoid taking on a 'fitness for purpose' duty for the design, whether stated expressly or arising by implication. This Practice Note considers what the so‑called 'fitness for purpose' obligation involves, who is bound by it and who is not, where it originates, and why contractors and consultants prefer not to accept it. It also sets out example clauses and evaluates whether a contractor should agree to them. The precise volume of design carried out under a contract or appointment can fluctuate, yet the standard applied to that design remains consistent across the board. Where does the fitness for purpose obligation come from? The fitness for purpose obligation stems from legislation on product liability and the...

A purchaser can finance the deal through: cash: drawing on its own available cash holdings (or those of its parent or another group entity) debt financing: obtaining funds via a bank loan or by issuing debt instruments to lenders (such as loan notes), or equity financing: raising capital through a further issue of its equity securities, by way of an open offer, rights issue, cash placing, cash box placing or vendor placing Debt or equity?......