Legal Practice Notes

The test for exclusion under PACE 1984, s 78 A defendant is not automatically entitled to have evidence kept out solely because it was obtained unlawfully. To guard against wrongful convictions, section 78 of the Police and Criminal Evidence Act 1984 empowers the court, considering all the circumstances and the manner in which the material was procured, to refuse evidence if its admission would so compromise the fairness of the proceedings that it ought not to be received. The provision is limited to prosecution evidence. In the Crown Court, the discretion must be exercised before the evidence is admitted. Once evidence has been received, section 78 no longer applies; the defence must then rely on the court’s common law discretion to exclude. This common law power is expressly preserved by PACE 1984. See R v Sat- Bhambra (1988) 88 Cr App Rep 55...

Directive 2001/83/ EC (the Pharmaceutical Code) introduces a period of data exclusivity starting from the first authorisation of innovative medicinal products, during which the pre-clinical and clinical trial evidence produced to support that approval cannot be relied upon by any applicant seeking a marketing authorisation ( MA) for a generic medicine. During this time, such data may not be cited or cross‑referred to by others at all. Accordingly, data exclusivity provides innovative companies with assurance that the scientific material prepared for the MA of the innovative product is safeguarded and will not be used to evaluate dossiers submitted by makers of generic or biosimilar medicines until the exclusivity enjoyed by the innovative product has expired. This protection is also termed regulatory data protection ( RDP). This Practice Note sets out an overview of the relevant EU rules that govern RDP for MAs covering...

When disposing of a freehold on sale, sellers may seek to impose positive covenants for later owners to fulfil. Difficulties can occur when trying to enforce positive covenants against successors in practice and in law. While leasehold covenants bind the initial tenant and anyone taking title after them, positive covenants in freehold conveyances do not by default. One technique to safeguard and enforce covenants over freehold land is the use of an estate rentcharge. For alternative approaches see Practice Note: Positive covenants—binding successors in title. Since August 1977, only specified categories of rentcharge, including estate rentcharges, can be created. Estate rentcharges can be used to enforce: positive covenants service charge contributions towards the rentcharge owner’s costs in performing covenants for the: provision of services ...

Introduction This Practice Note outlines and explains, in particular, escheat, bona vacantia (ownerless property) and the power of the Crown, or a Royal Duchy, to disclaim bona vacantia on the dissolution of a company where the relevant asset is a freehold estate in land. It further addresses the impact and consequences of a disclaimer of onerous freehold land by a liquidator, a trustee in bankruptcy, or the Official Receiver. Escheat Paramount lordship of the Crown The doctrine of escheat has its roots in the long-standing feudal arrangements for holding land. Within that framework, all land across England, Wales and Northern Ireland is, in the last resort, held by the Crown: this is the principle of paramount lordship. Nevertheless, others may hold a legal estate in land; the more modern expression of this appears in section 1 of the Law of Property Act 1925 ( LPA 1925), which...

Purpose An environmental impact assessment ( EIA) evaluates a project’s likely significant environmental effects. It ensures the environmental implications of a development proposal are given appropriate weight, alongside economic and social considerations, when planning applications are determined, and creates opportunities to lessen those impacts. It also allows the public and other consultees to participate in the decision-making procedures. Legislation and guidance In relation to town and country planning, EIA is governed by: The Town and Country Planning ( Environmental Impact Assessment) Regulations 2017, SI 2017/571 (the English EIA Regulations) in England; and The Town and Country Planning ( Environmental Impact Assessment) ( Wales) Regulations 2017, SI 2017/567 (the Welsh EIA Regulations) in Wales Together, the ‘ EIA Regulations’. The EIA Regulations transpose into English and Welsh law the changes introduced by Archived Directive 2014/52/ EU to Archived Directive 2011/92/ EU on assessing the effects of certain public and private...

Clean-up liabilities are legal and financial duties to rectify pollution or contamination arising under: statute, eg a pollution incident causing environmental damage civil disputes, eg damages for common law nuisance or negligence contract, eg an environmental indemnity Events that trigger clean-up liabilities can also lead to prosecution, liability for directors and officers, and reputational harm. Practitioners should address clean-up liabilities when: conducting environmental due diligence in corporate, property or financial transactions advising on company reporting and environmental accounting managing the transfer of environmental liabilities, such as contaminated land, between entities responding to pollution incidents Broad scope of clean-up liabilities Clean-up liabilities are not confined to remediation obligations for contaminated land under the Environmental Protection Act 1990, ss 78A–78YC ( Part IIA) ( EPA 1990) (the contaminated land regime). Their reach is broader, spanning environmental indemnities through to...

Parties often wish to stipulate that the entirety of their contractual relationship is governed by the written agreement they have signed. This is known as an ‘entire agreement clause’. This Practice Note examines why such clauses are used and the principal issues relevant to their operation, including the interplay between entire agreement clauses and implied terms, misrepresentation, fraud and exclusion clauses, non-reliance statements, and broader matters of evidential estoppel and contractual estoppel. For further guidance on construing the scope of parties’ contractual obligations, see Practice Notes: The parol evidence rule in interpreting contracts Contract interpretation—admissibility of surrounding documents and related content What is an entire agreement clause? At its simplest, an entire agreement clause provides that the whole of the parties’ contractual dealings is governed exclusively by the terms contained in their written contract. Consequently, when interpreting the contract, the court is...

Who are the parties to the Legal opinions are a core documentary condition precedent in loan transactions. In this setting, a legal opinion is a letter issued by a law firm to the lender(s) that sets out conclusions on points of law only; it does not address factual matters. The letter comprises the opinions themselves, together with a range of assumptions and qualifications, which often account for most of the document. It is usual for the solicitors acting for the lender(s) to provide the legal opinion on finance transactions; however, this ultimately turns on what the parties agree, the law firms advising them, and which opinions are needed, such as: capacity due execution enforceability (any one or more) For further guidance, see Practice Note: Legal opinions—uses, scope and structure— What is a legal opinion? and When do you use a legal...

This Practice Note outlines how the High Court and the County Court differ when enforcing a judgment or an order to pay a sum of money (a money judgment). It also describes the process for enforcing a County Court money judgment in the High Court and, conversely, enforcing a High Court money judgment in the County Court. It offers guidance on construing and applying the relevant CPR provisions. Depending on the court in which your case is progressing, you should also be alert to any additional requirements—see the section Court specific guidance below... The differences in enforcement jurisdiction and procedure between High Court and County Court As discussed further below, once you have obtained a judgment or an order for payment, it is possible to move enforcement between the High Court and the County Court. That naturally raises the issue—why opt for one court over the other for...

Court judgments and orders do not always require one party to pay money to another; they can also direct a party to perform an act, rather than provide a monetary remedy. Where the person obliged to carry out a specified step does not comply, the court may step in to see the required act is achieved by appropriate judicial measures where necessary. CPR 70.2A serves this purpose and ought to be read with, though distinct from, the contempt provisions for non-compliance with a court order (see: Tapecrown). Which court orders are covered by CPR 70.2A CPR 70.2A applies when a party has secured any of these: a mandatory order—eg party A obtains an order that party B destroy......

Where a developer, for whatever reason, does not fulfil its duties under an agreement made or binding on it pursuant to section 106 of the Town and Country Planning Act 1990 ( TCPA 1990) (a planning obligation/section 106 agreement), the relevant local planning authority ( LPA) may take steps to secure performance of the obligations contained in the section 106 agreement and to ensure compliance with its terms and requirements. On recognising that it cannot meet an obligation in a section 106 agreement, the developer should promptly engage with the LPA and seek to discharge or vary the obligation. For instance, it could propose a reduced or otherwise amended contribution, or negotiate a later trigger date for payment, delivery or compliance. See Practice Note: Renegotiating planning obligations/section 106 agreements. If that is not achievable, and the developer fails to comply with an...

The Health and Safety Executive The Health and Safety Executive ( HSE) is a non- Departmental Body within the Department of Work and Pensions and primarily serves as the principal regulator for health and safety offences. It co-operates closely with the Crown Prosecution Service ( CPS) and the police under the work related deaths protocol where manslaughter and corporate manslaughter are in issue. See Practice Note: Corporate manslaughter—an introductory guide. Section 10 of the Health and Safety at Work etc. Act 1974 (as amended) ( HSWA 1974) establishes the HSE to advance health and safety at work by conducting research, by providing training and information, and by undertaking enforcement. Basis of the HSE’s statutory powers Its powers and duties derive from a wide and comprehensive range of relevant statutes and statutory instruments......

Practice Note: The duty of fidelity and fiduciary duties As explained in Practice Note: The duty of fidelity and fiduciary duties, an implied duty of fidelity in every contract of employment will ordinarily prevent an employee from revealing to third parties confidential material learned in the course of their work. In addition, highly sensitive business information, commonly described as trade secrets, is protected by the equitable duty of confidence. Taken together, these obligations have historically shaped the implied responsibility owed by employees in relation to confidential information. The classification of business information is therefore pivotal: during employment, an employee is subject to an implied obligation not to disclose trade secrets and/or confidential information to others; after employment ends, only the implied restraint against revealing trade secrets persists. One exception is that a former employee may be stopped from benefiting,...

This Practice Note should be read alongside Practice Note: Electronic Documents Questionnaire ( EDQ)—frequently asked questions. It does not address the provisions of the disclosure scheme operating in the Business and Property Courts. For guidance, see: Disclosure Scheme ( Business & Property Courts)—overview. What is the Electronic Documents Questionnaire ( EDQ)? The Electronic Documents Questionnaire ( EDQ) is intended to be exchanged by the parties to share information about the scope, extent, and most appropriate format for e‑disclosure. While completion is not mandatory, CPR PD 31B, para 15 empowers the court to require parties to complete and exchange it where agreement cannot be reached. It is appended to CPR PD 31B. For an indication of the court’s approach when deciding whether an EDQ should be ordered, see Versi v Husain. In any case, it can be a helpful tool when assessing disclosure generally and...

FORTHCOMING CHANGE : The Product Security and Telecommunications Infrastructure Act 2022 ( PSTIA 2022) is in partial effect. Additional provisions will commence on dates to be fixed by regulations. PSTIA 2022 alters elements of the Code and the Landlord and Tenant Act 1954, chiefly relating to the sharing of apparatus, valuation on renewal under the LTA 1954, and dealing with unresponsive occupiers. Both the current position and anticipated amendments are highlighted in the Practice Note below. For further detail about the Code, see Practice Note: The Electronic Communications Code—code rights. The Code The Electronic Communications Code (the ‘ Code’) appears in sections 106–119A and Schedule 3A of the Communications Act 2003 ( CA 2003). It superseded the earlier Electronic Communications Code, which had been located in Schedule 2 to the Telecommunications Act 1984 ( TA 1984) (the ‘previous Code’). This Practice Note explains whether an...

Investment agreement This Practice Note acts as guidance for a drafter when preparing and/or reviewing an investment agreement, sometimes described as a subscription and shareholders’ agreement. It concerns the subscription for shares (and, where relevant, loan notes) in a private limited company incorporated in England and Wales by a private equity (or venture capital) fund investor (the investor) together with members of the target company’s senior management team, undertaken as part of a management buyout ( MBO). The transaction is assumed to proceed on a split exchange and completion basis, ie completion of the investment agreement is subject to conditions. Set out below are issues to consider when drafting and/or reviewing the key provisions of an investment agreement ( IA). Parties The investee companies In a typical buyout, the most straightforward structure is to incorporate a new company to acquire the target business or company (the...

Overlapping insurance polices There are numerous and varied ways by which an assured can find themselves unexpectedly with overlapping insurance, whether by intention or by accident. Illustrations include circumstances where the assured relies on cover placed by another party, or, in corporate settings, where risk managers are unaware of legacy policies procured by their predecessors in post. Likewise, an assured might unknowingly arrange insurance for particular assets, not appreciating that those assets already fall within a wider, existing policy providing broader protection. Another possibility is that the assured simply wishes to lift the overall limit of protection or, indeed, to hedge against the chance of their insurers becoming insolvent. At common law there is no obligation to avoid double insurance. Assureds are free to place insurance on the same insurable interest as many times, and under as many contracts, as they choose ( Godin v...

The main directors’ duties The principal duties of directors, originally shaped by case law, were codified for the first time in sections 171–177 of the Companies Act 2006 ( CA 2006). These general statutory obligations are summarised in the Practice Note: Directors’ duties—scope, nature, interpretation and application. The Chartered Governance Institute ( CGI) has likewise issued guidance on directors’ duties. See: The Chartered Governance Institute guidance on directors’ general duties......

Duties The obligations of court-appointed deputies are defined by the Mental Capacity Act 2005 ( MCA 2005) and its Code of Practice ( MCA 2005 Code of Practice). In addition, the Office of the Public Guardian ( OPG)’s deputy standards outline what is required of lay, Public Authority and professional court-appointed deputies. Further obligations appear in the deputy’s declaration on Form COP4. General duties arising under the law of agency also apply. The deputyship order A deputy must operate strictly within the specific parameters of the authority granted by the court, as described in the order of appointment. Where a deputy considers that the powers in the appointment order are not sufficient to carry out their responsibilities effectively, they must apply to the court (using Form COP1 and a witness statement on Form COP24) to either: ask the court to make the decision in...

Practice Note This Practice Note explains when the court may postpone the making of a final order in divorce or dissolution cases started on or after 6 April 2022, following commencement of the Divorce, Dissolution and Separation Act 2020 ( DDSA 2020). It also considers applications aimed at blocking the pronouncement of a final order in matters involving religious marriages, and circumstances in which the court, exercising its inherent jurisdiction, may pause the step from conditional order to final order. Although much of the authorities concern the Matrimonial Causes Act 1973 ( MCA 1973), comparable delay provisions exist in sections 39, 40 and 48 of the Civil Partnership Act 2004 ( CPA 2004), save that there is no parallel rule for religious marriages within civil partnership law. The Note covers the applicable law and procedure for applications lodged on or after 6 April 2022, being the date...