Legal Practice Notes

Introduction The police force is a pure public authority, carrying out only public functions. Consequently, proceedings can be brought against it under the Human Rights Act 1998 ( HRA 1998) and for misfeasance in public office. For further detail, refer to the Practice Notes: Personal injury claims under the Human Rights Act 1998 and Misfeasance in public office. Nevertheless, negligence actions remain by far the most common claims made against the police. This Practice Note considers: negligence claims by members of the public negligence claims by members of the police force negligence claims involving self-harm claims under HRA 1998 Vicarious liability and the correct defendant: technically, police officers are office-holders rather than employees......

This Practice Note outlines the process for applying to change a child’s name under sections 8 or 13 of the Children Act 1989 ( Ch A 1989). It identifies who may apply, whose consent is needed to effect the change, when the court’s permission must be obtained, and the steps to be followed. The Note clarifies when the court’s permission is necessary. It also lists the considerations the court must have regard to under the Ch A 1989, together with relevant case law. In addition, it provides guidance on changing a name by deed poll. Children's surnames at registration A child’s birth must be registered within 42 days of the birth. The child’s mother and father are responsible for completing the registration. The surname recorded in the register is the name intended for the child at the date of...

Employees’ pensions rights under an occupational pension scheme can be categorised as: entitlements that flow from the trusts governing the particular, relevant pension scheme contractual provisions contained in employees’ contracts of employment, whether express or implied For more detail, see Practice Note: Pensions and the employment contract. Understanding both sources matters when changes to future pension entitlements are considered. Appreciating this twin character is crucial, particularly where adjustments to staff members’ prospective pension benefits are on the table. As a rule, altering employees’ pension provisions within an occupational scheme requires use of the scheme’s power of amendment (and the sponsoring employer may need to consult the workforce about the proposals). Nevertheless, because pension rights sit in both spheres, employers will frequently also look to secure employees’ explicit agreement to the changes (typically after any consultation has closed) to reduce the risk of a...

Statutory nuisance leading to abatement notice A local authority is required to periodically examine its district for statutory nuisances, and when a resident submits a complaint, it must take all reasonably practicable steps to investigate it. A statutory nuisance may arise where any of the following are, or are likely to be, prejudicial to health or a nuisance: the condition or physical state of premises smoke, fumes or gas released from premises, a vehicle, machinery or equipment in a street dust, steam or odours originating from business, industrial or trade premises refuse, or any accumulation or deposited material noise arising from any premises, vehicle, machinery or equipment in the street For further detail on the above, see Practice Note: Statutory nuisance. A statutory nuisance can also be abated, limited or prevented by a nuisance order made by the...

Good and marketable title This Practice Note explains the meaning of ‘good and marketable title’, a phrase frequently seen in title certificates, reports, and property warranty provisions. For more detail on reporting to lenders and on property warranties, see the Practice Notes: Reporting to a lender in an investment real estate finance transaction, and Property warranties and indemnities in corporate transactions. The UK Finance Mortgage Lenders’ Handbook and the Building Societies Association Mortgage Instructions likewise require a lender’s solicitor to be in a position to certify that the title to the property is ‘good and marketable’. See Practice Note: Lenders’ instructions—the UK Finance Mortgage Lenders’ Handbook and the Building Societies Association Mortgage Instructions therein......

A caution against first registration Within this Practice Note, a ‘caution’ denotes a device for safeguarding interests in land that is not yet registered. It does not itself bring an interest into being, nor does it alter the validity or ranking of any interest held by the cautioner. Instead, it prompts HM Land Registry ( HMLR) to serve notice on the applicant for the caution—namely, the cautioner—whenever an application is made to register for the first time the legal estate relating to the land covered by the caution. This notification enables the cautioner, where there is reasonable cause, to challenge that first registration, if necessary. For more comprehensive direction, consult HM Land Registry Practice Guide 3: for detailed guidance......

Remoteness and foreseeability An injury arising out of clinical negligence does not, by itself, ensure a claimant will be granted damages by the court. A tort gives rise to damages only where each constituent is established: duty of care breach of that duty causation, i.e. the breach caused loss injury Remoteness of loss and foreseeability are elusive notions that pervade every stage identified above. They are the judicial instruments through which common sense and policy are applied. Failure to treat/loss of chance Where, but for the clinical negligence, the claimant had a prospect of recovering from illness or injury without adverse consequences, or held a strong chance of a cure, how do the courts handle causation and what damages are awarded? These issues concern causation intertwined with remoteness. In Hotson v East Berkshire Area Health Authority, a 13-year-old fell from a tree,...

When guiding an older or at-risk person on any litigation matter, it is crucial to assess at the outset whether they possess the capacity to pursue and manage proceedings effectively. Under the Mental Capacity Act 2005 ( MCA 2005), anyone who lacks the ability to conduct the case falls within the statutory definition of lacking capacity and, since 1 October 2007, is referred to as a 'protected party'. Where a claim is issued by, on behalf of, or against a protected party, no settlement, compromise, or payment, and no acceptance of money paid into court, is effective or valid, insofar as it concerns the claim by, on behalf of, or against that person, unless and until the court approves it. Principles of capacity under MCA 2005 Before turning to the specific rules and case law concerning capacity to litigate, it is helpful to note the relevant general...

Directors’ duties—fundamentals For the first time, the key duties of directors formulated by the courts were expressly set out in statutory form in sections 171–177 of the Companies Act 2006 ( CA 2006), thereby consolidating existing judge‑made principles. A full account of these statutory obligations—referred to as the general duties—can be found in Practice Note: Directors’ duties—fundamentals. The first four general duties are set out below: a duty to act in line with the company’s constitution and to use conferred powers solely for their proper purposes as intended by that constitution a duty to act, in good faith, in the manner the director believes is most likely to promote the company’s success for the benefit of all members collectively, while, in doing so, having regard to various factors a duty to exercise independent judgment a duty to exercise...

Practice Note This Practice Note outlines the different categories of burglary recognised by the Theft Act 1968 ( TA 1968), highlighting those offences that are solely indictable. It examines the constituent elements of burglary and considers the applicable sentencing framework, with reference to the mandatory fixed-term penalty imposed by the ‘three strike rule’. Generally, burglary is an either-way offence, capable of being heard in the magistrates' court or committed for trial in the Crown Court......

This Practice Note looks at bulk transfers between occupational pension schemes. A bulk transfer involves moving a cohort of members from one arrangement (the transferring scheme) to another (the receiving scheme). The transferring scheme makes a single payment to the receiving scheme that covers all the transferring members. Those members stop having rights in the transferring scheme and instead acquire rights under the receiving scheme. In effect, the group’s position in the transferring scheme ends and restarts within the receiving scheme... Circumstances in which bulk transfers are made Bulk transfers are most commonly undertaken alongside the merger or demerger of schemes. This can arise where an employer is selling or demerging part of its business, or when an employer wishes to bring two schemes together to achieve economies of scale. Even where the intention is to wind up the transferring scheme, standard practice is to carry out a...

Scope of this Practice Note This Practice Note sets out practical guidance and pointers for pursuing a professional negligence action. It includes a hypothetical example to illustrate the issues. It addresses the first steps, from pinpointing the relevant duty (arising in contract, tort, or both) and the alleged breach, through to the loss sustained and the remedy sought, including causation, quantum and mitigation obligations, the operation of the Pre- Action Protocol for Professional Negligence, limitation, and the process for issuing and pleading the claim. It also covers evidence issues, such as disclosure and expert evidence, plus practical topics including alternative dispute resolution ( ADR) and cross-border aspects. Professional negligence disputes may arise across a wide spectrum of professional services, including claims against: the medical profession—refer to Practice Note: The pre-action protocol for the resolution of clinical disputes—6 April 2015 onwards and related...

Bills of exchange Also known as ‘drafts’, bills of exchange are negotiable instruments that evidence an unconditional undertaking by one party (the drawer) to pay money to another (the drawee) in line with the terms contained in the instrument. They are commonly deployed in trade finance where, for one reason or another, a party prefers not to settle its account straight away. The Bills of Exchange Act 1882 ( BEA 1882) sets out in detail the formal requirements governing the form of a bill of exchange and, accordingly, should be referred to before any detailed consideration of a bill. BEA 1882 provides that a bill of exchange is: ‘…an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or...

An attachment of earnings order ( AEO) An AEO is a mechanism for enforcing maintenance obligations imposed by a court order made in the Family Court or the High Court, regardless of whether any arrears have accrued, by taking specified sums directly from the debtor’s wages. The order is addressed to the debtor’s employer, not the debtor. Once made, the employer must promptly remit prescribed amounts from the debtor’s pay to the court’s designated collecting officer, who then passes them on to the creditor. The Family Procedure ( Amendment) Rules 2016, SI 2016/355 amended the Family Procedure Rules 2010, SI 2010/2955 ( FPR 2010), and, among other things, created a new Part 39 provision governing applications for an attachment of earnings order to secure payments due under a maintenance order. These provisions took legal effect on 6 April 2016. Under FPR 2010, SI...

Introduction Most leases impose an absolute bar on assigning part of the demised premises, owing to likely complications concerning and arising from: apportionment of rent, other sums and covenant obligations as between the split parts progressive dilution of tenants’ covenant strength the physical subdivision of the premises potential knock-on adverse effects on rental values and/or the value of the landlord’s reversion Nevertheless, assignment of part is sometimes allowed in practice under leases granted for a substantial term on payment of a significant premium or on a rent‑sharing basis, often with development obligations on the tenant (this applies to both commercial and residential schemes). Where the term is very long (potentially up to 999 years), landlord’s consent may not even be required if the assignment meets strictly pre‑determined criteria and/or is notified to the landlord within a specified period following the event. If the lease is...

The offence of assault with intent to resist or prevent arrest, contrary to section 38 of the Offences Against the Person Act 1861 ( OATPA 1861), is triable either in the magistrates’ court or in the Crown Court. Magistrates may refuse jurisdiction where their sentencing powers are thought to be inadequate in a given case. Guidance on the scope of magistrates’ court sentencing is set out, for that purpose, in the Sentencing Council’s Magistrates’ Court overarching guideline—allocation where relevant. Elements of the offence of assault with intent to resist or prevent arrest The components of the offence appear in OATPA 1861, s 38. The prosecution must show that the accused committed the following: an assault upon any person with the intention to resist or prevent the lawful apprehension or detention of themselves or another for any offence Meaning of assault A charge under OATPA 1861, s 38 demands proof of a...

This Practice Note examines the distinctive contractual nature of the articles of association as between the company and its members, with a primary focus on section 33(1) of the Companies Act 2006 ( CA 2006). It assesses various forms of breach of the articles, considering when a majority of members may approve or ratify a breach in defined circumstances, or otherwise take appropriate steps against the board or an individual director, where relevant. It also considers actions brought by a minority shareholder, in particular personal actions for alleged infringements of ‘membership rights’ deriving from the constitutional contract. There is also brief reference to derivative actions, unfair prejudice claims and winding-up. What is the company’s constitution Unless the context otherwise requires, a company’s constitution is defined under CA 2006 to include: the company’s articles of association, and any resolutions and agreements affecting a...

Article 6 Article 6 of the European Convention on Human Rights (the ‘ ECHR’) provides that: When a person’s civil rights and obligations are being decided, or any criminal charge against them is considered, every person is entitled to a fair and public hearing within a reasonable time by a tribunal established by law that is independent and impartial. Judgment must be given publicly, but the press and public can be excluded from all or part of the hearing in a democratic society in the interests of morals, public order or national security, where the interests of juveniles or safeguarding the parties’ private life so require, or, in the court’s opinion, to the strictly necessary extent in special circumstances where publicity would prejudice the interests of justice. Everyone charged with a criminal offence is presumed innocent until proved guilty according to law. 3......

This Practice Note sets out guidance on preparing witness evidence for arbitration proceedings. As with documentary material, the tribunal determines how witness evidence is to be presented, having regard to, among other things: any procedures contained in the arbitration agreement (though this is uncommon) any relevant arbitration rules whether the IBA Rules on the Taking of Evidence in International Arbitration (the IBA Rules) have been adopted any applicable national laws These factors are taken into account by the tribunal. It may additionally be shaped by the nationalities of the parties’ legal representatives and the tribunal. It is for the tribunal to resolve all procedural and evidential issues (subject to any agreement by the parties), including whether, and to what extent, there should be oral or written evidence or submissions ( AA 1996, s 34). Witness statements in...

This Practice Note This Practice Note has been revised following the introduction of the Arbitration Act 2025 and now points to changes made to the Arbitration Act 1996. For more detail on commencement and transitional arrangements, see Practice Note: Arbitration Act 2025 commencement and transitional provisions. It offers an overview of arbitration and its principal characteristics, concentrating on practice under the law of England and Wales, including the Arbitration Act 1996 ( AA 1996), as modified by the Arbitration Act 2025 ( AA 2025), which obtained Royal Assent on 24 February 2025 and took effect on 1 August 2025. Arbitration is a conclusive and binding method of resolving disputes, overseen by a constituted arbitral tribunal (usually one or three arbitrators) operating in a quasi-judicial way. As a rule, it rests on the parties' agreement (the arbitration agreement) and is supervised and enforced by...