Legal Practice Notes

This Practice Note outlines the reporting duties arising under key UK sanctions frameworks and other reporting requirements linked to sanctions compliance. These cover obligations in regulations made under the Sanctions and Anti- Money Laundering Act 2018 ( SAMLA 2018), conditions attached to licences, other sanctions regimes, professional reporting duties and additional reporting requirements... Financial sanctions mandatory reporting obligations in regulations made under SAMLA 2018 Financial sanctions reporting duties are contained in the specific sanctions regulations issued under SAMLA 2018. These generally apply to ‘relevant firms’ as defined in the relevant statutory instrument. Obligations can extend beyond those entities, so you should review the applicable legislation for precise requirements, for example: ‘relevant institutions’ face extra reporting duties in relation to frozen accounts there are particular reporting duties for designated persons—see section: Other reporting requirements For information on the sanctions regimes established under SAMLA 2018, see...

Overview Section 31 of the Senior Courts Act 1981 ( SCA 1981) sets out the remedies available on an application for judicial review which a court may grant. The list includes the following: quashing orders mandatory orders prohibiting orders declarations damages (including restitution or recovery of a sum due) injunctions/interim remedies Under CPR 54.6, the claimant is required to state, in the claim form, any remedy being sought. By virtue of SCA 1981, s 31(1), the remedies can be claimed in the alternative, or as cumulative options in addition to each other. For further information and discussion, see: Combining prerogative orders: Supperstone, Goudie and Walker on Judicial Review [16.2]. In this context, a conclusion that a judicial review has succeeded is not, as a general rule, sufficient finally to dispose of a claim (see R ( LND1) v The...

The Investigatory Powers Act 2016 ( IPA 2016) now provides the core legal structure for the use of covert surveillance by public bodies. Before this, the field was governed mostly—though not wholly—by the Regulation of Investigatory Powers Act 2000 ( RIPA 2000). The RIPA 2000 provisions on intercepting and acquiring communications data have been repealed and replaced by IPA 2016. However, the regimes for direct surveillance, covert human intelligence sources ( CHIS), and obtaining electronic data protected by encryption continue to be governed by RIPA 2000. For guidance on interception and the acquisition of communications under IPA 2016, see the following Practice Notes: The regulation of intelligence gathering—an introductory guide Acquisition, retention and disclosure of communications data under the Investigatory Powers Act 2016 Interception of communications under the Investigatory Powers Act 2016 Equipment interference under the...

This Practice Note outlines the suite of information-related regulated activities, namely: the provision of credit information services (article 89A), supplying credit references (article 89B) and running a pensions dashboard service (article 89BA) under the Financial Services and Markets Act 2000 ( Regulated Activities) Order 2001, SI 2001/544 ( RAO) framework. It sets out what amounts to each activity, highlights principal exclusions and exemptions, explains authorisation expectations, and also summarises the Financial Conduct Authority’s ( FCA’s) oversight of credit reference agencies ( CRAs) and credit information service providers ( CISPs), among other matters. Regulated activities—general Section 19(1) of the Financial Services and Markets Act 2000 ( FSMA 2000) imposes a general ban on undertaking regulated activities in the UK unless a person is authorised or exempt. In line with FSMA 2000, s 22, an activity counts as regulated if it is carried on ‘by way of...

This Practice Note outlines the debt-related regulated activities set out in Chapter 7B of the Financial Services and Markets Act 2000 ( Regulated Activities) Order 2001, SI 2001/544 ( RAO), namely debt adjusting, debt counselling, debt collecting and debt administration. It also provides a summary of the Financial Conduct Authority ( FCA) rules that apply to debt management firms and not-for-profit organisations... What is a debt management firm? The FCA Glossary defines a debt management firm as: a firm that undertakes debt counselling or debt adjusting, whether separately or together, aiming for an individual to enter a particular debt solution; or a firm providing debt counselling where an associate carries on debt adjusting with the purpose in (a) in mind; or a firm carrying on debt adjusting where an associate undertakes debt counselling with the purpose in (a) in...

Rectification is an equitable remedy by which the court may amend a misstatement where a written instrument fails to reflect the parties’ true intentions. It applies only to written contracts and other formal documents, not to oral agreements at all. This Practice Note sets out when a solicitor must draw attention to unilateral drafting mistakes, and when a unilateral mistake is no more than an error of judgment. For guidance on rectification for common mistake, see Practice Note: Rectification—mutual mistake. When is rectification available? Rectification for unilateral mistake is permitted where one party errs in a document, the other party knowingly recognises the error to their favour, and unconscionably takes advantage of it......

For probate purposes, the UK is divided into three jurisdictions: England and Wales Scotland Northern Ireland If someone dies domiciled in one of these areas but holds assets in another, a single grant is sufficient. The grant is obtained in the jurisdiction where the deceased was domiciled and, if it records that domicile, it will be recognised throughout the rest of the UK. Where a grant or confirmation predates the commencement of the Administration of Estates Act 1971 ( AEA 1971) on 1 January 1972, it may not include a domicile statement. For English and Welsh grants, an application to append a note of domicile should be made to the district probate registry that issued the grant. Scottish confirmations A Scottish confirmation: includes a copy of the inventory of the deceased’s estate as sworn by the...

This Practice Note outlines the law concerning criminal recklessness. The subjective test for recklessness Certain statutory and common law offences allow the prosecution to prove mens rea through ‘recklessness’. Put simply, recklessness is where the accused takes an unjustified risk that results in unlawful harm or damage. The House of Lords in R v G reaffirmed the subjective approach to recklessness. Before R v G, two distinct tests were used, depending on the offence charged: Subjective recklessness from R v Cunningham: the prosecution had to establish that the accused personally foresaw the risk. Objective recklessness from R v Caldwell: the prosecution only needed to show that the risk would have been obvious to a reasonable person, without proving the accused themselves foresaw it. In R v G, the House of Lords concluded that the objective test could operate unfairly where a defendant did not foresee the...

This Practice Note outlines the range of options open to a landlord where a tenant breaches the lease, such as forfeiture, issuing a statutory demand, potential court action to recover rent or damages, or to seek an injunction, together with Commercial Rent Arrears Recovery ( CRAR) (including taking rent from sub-tenants), claims against guarantors and other relevant parties, actions against former tenants (by serving a notice under section 17 of the Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995)), drawing on a rent deposit, and serving an entry and repair notice. Where a tenant breaks a lease covenant, various remedies are potentially available to the landlord, identified and described below. Before pursuing any remedy, landlords should consider whether: the tenant is subject to any form of insolvency. If so, check the list of restrictions on recovery action for each type of...

Apportioning damages Although all dependants’ claims are issued together before the court, this occurs purely for procedural and administrative ease within litigation and case management. Each dependant pursues a distinct claim, so their losses must be assessed on an individual basis. As multipliers can differ according to the situations of both the deceased and the particular dependant, the suitable multiplier can therefore vary from one dependant to another. What stance will the court adopt? In most cases, generally, a fatal accident claim proceeds under both the Law Reform ( Miscellaneous Provisions) Act 1934 ( LR( MP) A 1934) and the Fatal Accidents Act 1976 ( FAA 1976)......

From 1 September 2021, a new pathway to qualification for prospective solicitors was introduced—the Solicitors Qualifying Examination ( SQE). During a transitional period, candidates can still qualify via a training contract, an apprenticeship, or the SQE. In due course, the SQE will replace the training contract route, and apprenticeship qualification will proceed through the SQE. To qualify as a solicitor under the SQE, a candidate must: hold a UK degree in any subject (or equivalent qualification or experience—this can include a solicitor apprenticeship) pass both SQE assessments complete two years’ full-time (or full-time equivalent) qualifying work experience ( QWE) The candidate must also meet the SRA’s character and suitability requirements. This Practice Note sets out the SRA’s rules for QWE and practical points for employers providing training and work experience to aspiring solicitors. For broader information on the SQE, see Practice Note: The...

This case tracker This case tracker surveys the decisions handed down since the leading authority of Alcock v Chief Constable of Yorkshire Police in 1991. Later judgments broadened the notion of secondary victims and examined how far the courts would permit personal injury claims to be brought by such secondary victims. Yet the outcomes lacked consistency, generating uncertainty. The landmark Supreme Court ruling in Paul v Royal Wolverhampton NHS Trust has now brought clarity, having scrutinised in depth the earlier line of cases and standing as the controlling authority in this field. Certain decisions were expressly declared to have been wrongly determined; others were affirmed as reaching the correct result but for incorrect reasoning, and these have been highlighted. It is still uncertain how the jurisprudence will evolve concerning accidents within a clinical negligence setting. A secondary victim is an individual who suffers...

Responsibility for psychiatric harm partly turns on the character of the injuries sustained and the way they were incurred. Classifying the victim Where a claimant suffers both physical and psychiatric harm, even where the bodily injury is slight, they may recover damages in the ordinary way, subject to causation and related matters. In such circumstances there is no separate requirement to show that psychiatric harm was foreseeable if the physical injury itself was foreseeable. Difficulty arises where the claimant has psychiatric injury alone and is otherwise unhurt. For ‘pure’ psychiatric injury following an accident or event, the law distinguishes between: primary victims—see below secondary victims—see below Primary victims Primary victims are directly engaged in the incident and commonly—but not invariably—sustain physical as well as psychiatric injury. For further guidance, see Practice Note: Psychiatric injury—primary...

This Practice Note examines provisional assessment, a process introduced in the High Court and County Court in April 2013. It outlines what it involves and the circumstances in which it is used. It explains the applicable rules, how the assessment is undertaken, and what options are available if the parties wish to challenge the provisional assessment. It also considers appeals arising from decisions made following a request for an oral rehearing of issues determined on provisional assessment. For quick reference to the provisions engaged in provisional assessment proceedings, see: What rules apply for provisional assessment—checklist Documents required for provisional assessment—checklist What is it and when does it apply? What is it? Provisional assessment is the process by which the court assesses costs on the papers, without an oral hearing. The specific framework is set out in CPR 47.15. As the process is...

Providing false statement to an auditor A company’s directors must produce a report for each financial year, unless the small company exception in section 415A of the Companies Act 2006 ( CA 2006) applies. The report has to set out the information required by CA 2006, sections 415 to 418 inclusive. In relation to providing information to auditors, section 418 CA 2006 obliges the directors’ report to include a statement confirming two points: so far as every director knows, there is no relevant audit information of which the company’s auditor is not aware; and the directors have taken all steps they ought to have taken, in their capacity as directors, to make themselves aware of any relevant audit information and to ensure the company’s auditor is aware of it. All directors in office when the report is approved must make the identical statement. For these...

This Practice Note This Practice Note provides an overview of the safeguards available for geographical indications ( GIs) and designations of origin, such as appellations of origin, protected designations of origin ( PDOs) and protected GIs ( PGIs) in the UK, and highlights distinctions between the systems in Great Britain and Northern Ireland. It examines the relationship between appellations of origin, PDOs and PGIs and trade mark law. It outlines the international architecture for protection under the Paris Convention for the Protection of Industrial Property and the Agreement on Trade- Related Aspects of Intellectual Property Rights (the TRIPS Agreement). It further reviews the protections afforded by UK legislation, including the UK GI scheme—introduced when the EU regime ceased to apply in Great Britain—as well as the narrower protection available under the Trade Marks Act 1994 ( TMA 1994). Businesses frequently seek to adopt marks that point to the...

For guidance on the fundamental features of the doctrine of estoppel and the various classifications applied to it, see Practice Note: Estoppel—what, when and how to plead and related content. —what is it? Where A, through words or conduct, gives B a definite and unambiguous promise or assurance about their legal relations, intending it to be relied upon, and B does rely and acts accordingly, A will not thereafter be allowed to revert to the earlier legal position as if no such promise or assurance had been made. It is also sometimes referred to as ‘equitable forbearance’ and is said to have developed from the doctrine of waiver, which occurs where one party ( A) voluntarily agrees to a request by the other ( B) not to perform in the manner fixed by the contract—see Practice Note: Estoppel—what, when and how to plead (section on...

This Practice Note outlines the meaning of a profit à prendre and the various categories, the ways such rights may come into being and be brought to an end, and highlights those most frequently met in practice. It also briefly addresses profits à prendre during due diligence and the means of securing them by registration at HM Land Registry. Introduction—what is a profit à prendre? A profit à prendre is a legal right to remove natural produce from land owned by someone else. Illustrations of profits include: elements of the land itself, such as sand, peat or minerals products growing on the land, such as grass or timber—this includes grazing rights wild creatures such as fish or game In day-to-day practice, shooting and fishing rights (often called sporting rights) are the profits most often encountered. The items taken must be capable of...

What is professional indemnity insurance? Professional indemnity insurance is a type of liability cover. It offers an individual professional or a firm an indemnity and protection against claims or losses resulting from negligent acts, mistakes or omissions linked to the insured professional practice. This cover usually also includes the acts, errors and omissions of former employees. In certain sectors—such as solicitors, accountants, architects, chartered surveyors, financial advisers and some healthcare professionals—holding professional indemnity insurance is a legal requirement. Nonetheless, any person or business that supplies advice, designs or services in a professional capacity should carry this insurance. The cover is generally intended to respond to client claims for damages arising in the ordinary course of the insured's professional services. These are claims brought by a client in connection with the routine delivery of the insured party’s professional services. For detailed guidance on...

This Practice Note examines product liability insurance primarily through the lens of participants in the construction sector. While this form of cover is relevant to many other industries, for present purposes those fall beyond the remit of this Practice Note (see Practice Note: Product liability and product recall insurance and Q& A: What is Products Liability Insurance?). What is product liability insurance and who needs it? In the construction context, product liability insurance is a form of cover that safeguards the insured against liability for death or bodily injury (excluding employees) or for property damage, where such liabilities arise from defects in products that have been used in the course of a construction project. Firms that manufacture and/or supply products intended to be incorporated into a building structure may face legal action if faults in those products cause damage or injury to the structure...