Legal Practice Notes

The nature of the duty owed by bus drivers A bus driver owes the same duty to fellow road users, including passengers, as any other driver: to drive with the reasonable care and skill of a competent motorist. That competence must be evaluated in context, particularly for those operating buses, by reference to: the Highway Code the Driver and Vehicle Standards Agency's Official DVSA Guide to Driving Buses and Coaches Only with such a measured assessment of the duty of care can there be a meaningful decision on whether that duty has been breached. The County Court case of Kevin Graham v Go North East Limited (20 November 2017) (not reported by Lexis Nexis®) illustrates the delicate balance when applying this duty. A defendant bus driver collided with the claimant's vehicle at a crossroads controlled by traffic lights. He proceeded through a...

Road Traffic Act 1988—general provisions The obligation to hold motor insurance, and the scope of that protection, is contained in Part VI of the Road Traffic Act 1988 ( RTA 1988), titled ‘ Third- Party Liabilities’, covering sections 143–162. These provisions also define the entitlements of those injured to pursue claims against insurers. RTA 1988—relevant provisions Requirement to insure use of a motor vehicle RTA 1988, s 143 provides that no individual may use, or cause or allow the use of, a motor vehicle on a road or any other public place unless appropriate insurance exists for that vehicle’s use. The Motor Vehicles ( Compulsory Insurance) ( Miscellaneous Amendments) Regulations 2019, SI 2019/1047—effective from 1 November 2019—abolished securities and deposits as substitutes for motor insurance. However, under SI 2019/1047, reg 5, any deposit lodged or security provided before 1 November 2019 can remain valid until 1...

There are three important areas in which the basic position of an agency worker is affected by the law: the oversight and regulation of employment agencies and businesses the entitlement of temporary agency workers to equal treatment under the Agency Workers Regulations 2010 ( AWR 2010), SI 2010/93 employment protection entitlements for agency workers, stemming from their status as a worker or, in some instances, as an employee Each of these strands functions independently. In particular, rights under AWR 2010 do not hinge on whether someone is an employee at common law, nor do they alter or streamline that status; likewise, they do not modify the core conduct rules governing employment agencies and businesses. This Practice Note concentrates on the rights of agency workers conferred by AWR 2010. For a checklist of the rights that an agency worker may hold as an...

FORTHCOMING CHANGE : The Trusts and Succession ( Scotland) Act 2024 obtained Royal Assent on 30 January 2024, signalling the first major overhaul of Scottish trusts law in more than a century since the Trusts ( Scotland) Act 1921. Most trust provisions will commence only when Scottish Ministers implement the required secondary legislation. By contrast, certain succession measures and aspects concerning the removal of trustees are already in operation. A summary of the key modernising reforms is set out in News Analysis: Trusts and Succession ( Scotland) Bill passed. Practice Notes dealing with Scottish trusts and succession will be revised to reflect the new regime in due course. General nature of beneficiaries’ rights Under Scots law, beneficiaries are generally regarded as holding personal rights against the trustees, although in some situations their rights resemble a real right in property. Notably, the...

Modes of revival A testator who has revoked their Will, whether or not a new one was created, may later wish to restore the revoked Will. They may write out the revoked Will afresh and execute it in accordance with section 9 of the Wills Act 1837 ( WA 1837), or rely on the provisions of WA 1837, s 2. Under WA 1837, s 22, revival of a revoked Will or codicil (or any part of them) is limited to: re-execution a duly executed codicil indicating an intention to revive the earlier document Case law confirms that no other means of revival exists. The intention to revive must be apparent. Where a Will is re-executed, the very act of re-execution evidences the testator’s intention to bring it back into effect. In the case of a codicil, the statutory requirement that there be an...

This Practice Note concentrates on the regulatory obligations in the AIM Rules for Companies ( AIM Rules) that apply to an AIM company undertaking a transaction categorised as a reverse takeover. Under the AIM Rules, a reverse takeover broadly involves an AIM company acquiring a business, company or assets (the target) where the target exceeds the size of the AIM company itself, or where the deal would lead to a fundamental alteration in the AIM company’s business, board or voting control... There are parallel provisions on reverse takeovers in the UK Listing Rules issued by the Financial Conduct Authority ( FCA) for entities on the Official List. The listed company regime is, in general, more prescriptive than the framework that governs AIM companies... Key provisions The principal requirements that an AIM company must observe when undertaking a reverse takeover are contained in Rule 14 of the AIM...

The Online Safety Act 2023 ( OSA 2023) was brought in to tackle a range of recognised online harms, notably reforming the offence dealing with intimate image abuse and confronting the transmission of unsolicited sexual imagery. For further details on the OSA 2023, see Practice Note: Offences under the Online Safety Act 2023. OSA 2023, s 188 adds a provision to the Sexual Offences Act 2003 ( SOA 2003) which, from 31 January 2024, makes it a crime to share or threaten to share intimate photographs or films without consent. This offence is commonly called ‘revenge porn’ and replaces the previous offence of disclosing private sexual photographs and films with intent to cause distress under section 33 of the Criminal Justice and Courts Act 2015 ( CJCA 2015). CJCA 2015, s 33 was repealed on 31 January 2024, but any offences...

This Practice Note provides links to resources on employee competition and confidentiality, covering post-termination restrictions (also known as restrictive covenants). Across these materials, the term 'post-termination restrictions' is used in preference to 'restrictive covenants'. Our documents on employee competition and confidentiality are organised into three areas: Employee duties and restrictions on competition: explores the obligations an employee owes their employer, especially how these bear on the degree to which an employee may compete with a present or past employer Determining whether restrictions are enforceable: addresses issues arising when interpreting restrictions, and therefore the considerations when drafting post-termination restrictions Confidentiality, duties and restrictions: enforcement: concentrates on practical measures an employer can take to enforce employee duties, for example concerning confidential information, along with the process for, and remedies available in, court proceedings A complete listing of documents within these three areas appears...

Anti-avoidance rules in Part 14 and Part 14A of CTA 2010 This Practice Note outlines the anti-avoidance provisions set out in Part 14 and Part 14A of the Corporation Tax Act 2010 ( CTA 2010), which operate when a change of company ownership occurs. Part 14 (the Part 14 rules) targets arrangements whereby a profitable organisation reduces its corporation tax liability by acquiring a company with accumulated losses and offsetting those losses against its own profits. This approach is often called loss-buying (not to be confused with the rules on purchasing capital losses; see Practice Note: Pre-entry capital losses). While Part 14 restricts the utilisation of losses already crystallised after a takeover, Part 14A of CTA 2010—the transfer of deductions targeted anti avoidance rule ( TAAR)—extends this principle to unrealised expenses (ie items not yet recognised for tax). In broad terms, these rules stop a...

What is a restraint order? A restraint order is a preventive step taken to back up any confiscation order that might be, or has already been, imposed. It is a statutory device, set out in section 40 of the Proceeds of Crime Act 2002 ( POCA 2002). Under POCA 2002, s 40 (which provides for restraint orders), an investigator or prosecutor is afforded the pre-emptive power to restrict a person's assets where that person is suspected of, or being investigated for, an acquisitive offence, and even before any arrest on the alleged offence. A restraint order made pursuant to POCA 2002 also operates to freeze both identified and yet-to-be identified property so as to preserve assets regarded as necessary to satisfy a confiscation order following prosecution and conviction (see below: Legislative steer under POCA 2002, s 69). The order expressly bars any...

This Practice Note explores Chapter 5 of the Financial Conduct Authority’s Consumer Credit sourcebook ( CONC 5). It sets out rules and guidance on responsible lending, covering creditworthiness checks before agreements are made and conduct of business standards for credit broking. Background Creditworthiness spans two strands: credit risk to the firm and affordability for the customer. Firms often have strong commercial reasons to gauge risk, but weaker incentives to test affordability or the potential detriment to a customer’s broader finances where lending remains profitable. CONC 5 requires a reasonable assessment that weighs both the likelihood of repayment and whether payments can be sustained without materially harming the customer’s wider financial situation. The FCA has avoided overly prescriptive rules to reduce harmful side effects, such as on the price and availability of credit. Instead, firms should adopt a proportionate approach that reflects the size, cost and risk of the...

Practice Note This Practice Note explains the steps a respondent should take when served with an appellant’s notice of appeal in the County Court, the High Court or the Court of Appeal under CPR Part 52. It addresses preparing and filing a written statement answering an application for permission to appeal ( PTA) under paragraph 19 of Practice Direction 52C, identifies when a respondent’s notice is required, what it ought to include, whether amendments are permitted, and the deadlines for filing and service. It also reviews the circumstances in which an appeal notice may properly be struck out under Rule 52.9, alongside treatment of skeleton arguments and PTA issues. The Practice Note directs readers to the provisions contained in CPR 52 and CPR PD 52A, and indicates that those general provisions are stated to apply to: appeals to the Civil Division of the Court of...

This Practice Note sets out how a respondent files an Answer to an appeal, together with the possibility of advancing a cross-appeal. It also outlines the consequences of not providing a respondent's Answer to an appeal, the time limits for lodging an Answer and/or cross-appeal, and the method for seeking extensions of those limits. It addresses the position where, at the full hearing, a respondent wishes to contend that the Notice of Appeal raises a point of law not pursued in the employment tribunal, and it explains the process by which an appellant may serve a Reply to a cross-appeal... The EAT will send to all parties who are respondents to the appeal: the Notice of Appeal, with any amendments which have been permitted any submissions or skeleton argument lodged by the appellant Within 28 days of the seal date of the order, unless another period is...

This Practice Note is aimed at UK private sector commercial organisations. It outlines the measures you should adopt to fulfil your duty under the UK General Data Protection Regulation ( UK GDPR) to safeguard third party rights and freedoms when answering a data subject access request (a DSAR), with particular focus on trade secrets, intellectual property and copyright. It excludes processing for policing purposes or the intelligence services. A separate Practice Note addresses situations where handling a DSAR might require revealing information that identifies another person—see Practice Note: Responding to a data subject access request—information identifying other individuals. This Practice Note cites European Data Protection Board ( EDPB) guidance. While EDPB materials are no longer directly applicable to, or binding under, the UK GDPR, the ICO has stated they can still offer useful direction on certain matters. The right of access The right of access is among the...

This Practice Note is aimed at general commercial organisations in the UK. It offers guidance on handling data subject access requests ( DSARs) that could require sharing material that identifies other individuals. It reflects the UK General Data Protection Regulation ( UK GDPR) and ICO guidance on the right of access. This Practice Note does not address processing for law enforcement purposes or the intelligence services. There is a separate Practice Note covering other third party rights, including trade secrets and intellectual property—see Practice Note: Responding to a data subject access request—protecting third party rights. The right of access The right of access is one of the data subject rights set out in the UK GDPR. DSARs are relatively frequent and are regarded as the gateway right, enabling individuals to use other rights such as rectification or erasure. They can be...

This Practice Note explains the requirements for responding to an employment tribunal claim (ie defending a claim). If the claim, or any part of it, is accepted (see Practice Note: Submission of a claim to the employment tribunal), the tribunal must provide each respondent with: a copy of the claim form; and a notice setting out: whether any part of the claim has been rejected; and how to submit a response to the claim, the deadline by which the tribunal must receive it, and the consequences if the tribunal does not receive a response within that period. A tribunal may send a copy of the claim form to a respondent at an address different from the one stated on the claim form itself....

This Practice Note explores the likely classification of a residential letting made to a company and the position of any individuals permitted to occupy by that company... Status of tenant company Under section 1 of the Housing Act 1988 ( HA 1988), only natural persons may hold an assured tenancy ( AT). As a result, a company cannot hold an AT (or, where relevant, an AST). See Practice Note: Assured and assured shorthold tenancies—granting... It is improbable that a company’s occupation of a dwelling will amount to a business tenancy under Part II of the Landlord and Tenant Act 1954 ( LTA 1954), unless the letting satisfies section 23. A tenancy falls within the LTA 1954 where all or part of the premises are occupied by the tenant for the purposes of its business, or for those and other purposes. The term ‘business’ embraces any trade,...

Overview of consultation process The flowchart below sets out a straightforward overview of the matters to weigh up when deciding whether consultation is required and, if so, the sequence of steps to follow. It is not a replacement for the fuller guidance that appears below, which should be consulted at every stage. When do the consultation requirements apply? The landlord must consult with tenants before any of the following occur: carrying out qualifying works that will mean the contribution of any tenant towards those works exceeds £250, or entering into a qualifying long-term agreement where the costs will result in the contribution of any tenant being more than £100 within any 12-month accounting period This process is often informally called 's 20 consultation', a shorthand derived from sections 20–20ZA of the Landlord and Tenant Act 1985 ( LTA 1985). Its purpose is to ensure that, where a...

Checking whether a Will is valid After obtaining the Will, examine it and any codicil to verify they meet the legal requirements for a valid Will. Confirm that it: was executed in line with the required formalities has not been revoked by operation of law on marriage or civil partnership has not been revoked by a deliberate act of the testator, by a later Will or codicil, or by destruction has not been altered was made when the testator was over 18, or if under 18, that they were a soldier on active military service, or a mariner or seaman at sea is free from staple or paperclip marks has no pages missing is the most recent Will A valid Will The fundamental criteria for a valid Will are that the testator must: have the mental...

Repudiation of a contract Repudiation arises when one party signals to the other—by words or conduct—that they no longer intend to be bound, commonly by a serious breach of an important contractual duty. The innocent party may then choose to: affirm the agreement and pursue enforcement of performance and/or seek damages (see Practice Notes: Specific performance of property agreements and Contractual damages—general principles); or accept the repudiation and treat the contract as terminated (known as rescission or discharge for breach). Upon acceptance, both parties are released from any further performance, and the innocent party can claim damages resulting from the repudiation. Acceptance must be clear and unequivocal. Mere inactivity or acquiescence is generally not sufficient. For guidance on ending a contract by serving notice to complete, see Practice Note: Notice to...