Legal Practice Notes

This Practice Note This Practice Note offers a toolkit to help employers and advisers manage long‑term ill health or persistent sickness absence. Handling an employee absent for multiple extended spells, or a single prolonged, continuous absence, can be intricate and often demands a particularly careful, staged process, which the employer must document thoroughly and consistently. Extra caution is needed to minimise exposure to disability discrimination claims where the individual has a long‑term condition that meets the statutory definition of disability under the Equality Act 2010 ( Eq A 2010)—see Practice Note: Disability. Any permanent health insurance ( PHI) arrangement or pension scheme offering ill‑health retirement benefits will also be pertinent and should be taken into account. Securing a fair dismissal on grounds of long‑term ill health may take considerable time. The procedure must be conducted in line with statutory and case law...

For an explanation of why participants in a loan transaction may adopt hedging, see Practice Note: Use of derivatives to hedge against risk in a lending context. Parties The parties to the hedging arrangements will be: the borrower, and the hedging bank (often called the hedging counterparty) The hedging bank will frequently be the lender, or, in a syndicated deal, one of the lending group. Nevertheless, the hedging bank operates in a distinct capacity from its role as lender, and separate teams within the bank will act for it in each role. For further details, see Practice Note: Use of derivatives in a lending context—documentation issues— Hedging bank and lending bank. Hedging documentation in loan transactions Certain facility agreements contain a clause detailing what hedging is required for a particular deal (for instance, clause 8.3 of the Loan Market Association ( LMA) Single Currency Term Facility Agreement for Real Estate...

Scope of this Practice Note This Practice Note sets out information on the regulated activity of dealing in investments (whether as principal or as agent) as contained in article 14 of the Financial Services and Markets Act 2000 ( Regulated Activities) Order 2001, SI 2001/544 ( RAO), as amended from time to time. Authorised persons may obtain permission to deal in investments either on their own account or on behalf of another; both routes are specified activities. Dealing as principal is a regulated activity under RAO, SI 2001/544, art 14. When acting as principal (i.e. for oneself), the activity covers the following in respect of securities or contractually-based investments, excluding funeral plan contracts (see article 87 of the RAO) and rights to or interests in investments (see article 89 of the...

A dawn raid may target any enterprise, regardless of scale, so every company should remain alert to the risk of such action. As commercial behaviour faces growing criminalisation, with more regulatory offences and an expanding web of money laundering rules, the likelihood of enforcement officers executing a raid has become a routine prospect for many organisations. The chance of UK authorities stepping in rose with the Bribery Act 2010. It climbed again with the creation of the corporate offence of failing to prevent bribery, the corporate offence of failing to prevent tax evasion under the Criminal Finances Act 2017, the widening of corporate criminal liability, and the introduction of an offence of failing to prevent fraud via the Economic Crime and Corporate Transparency Act 2023. As business technology keeps advancing, firms must ensure their data handling and internal policies stay current so...

Actual or constructive Date of knowledge As set out in section 14 of the Limitation Act 1980 ( LA 1980), it is deceptive for the purposes of limitation. It captures situations where a claimant knows the essential components of the tort, and also where they are deemed to know them, even if in fact they do not, because the court imputes that knowledge. The test is partly subjective and partly objective. Put differently, it combines personal awareness with knowledge the court attributes to the claimant for limitation purposes. The date of knowledge may arise although the claimant was unaware of having suffered injury, or of any link between that injury and the defendant’s conduct. If the date of knowledge post-dates the injury, the limitation clock does not begin to run until that later date. The onus rests on the claimant to establish that the...

This Practice Note is aimed at general commercial organisations operating in the UK. It sets out the rules that apply to retaining personal data and offers practical steps for complying with those obligations, in a clear and workable manner. It reflects the UK General Data Protection Regulation ( UK GDPR), Assimilated Regulation ( EU) 2016/679. Retention duties stem from the UK GDPR’s storage limitation principle, which requires discipline over how long information is held. You must not retain personal data beyond what you genuinely require. Once it is no longer needed, personal data should be deleted or anonymised. Sound storage limitation practices also ease the workload of handling retention queries and individual erasure requests. They further reduce the chance of personal data being misused or applied mistakenly in ways that could harm individuals’ rights and freedoms under the UK GDPR....

This Practice Note outlines the core principles governing awards of damages in tort actions. It addresses the compensatory purpose of tort damages; separates general from special damages; explains when exemplary (punitive) and aggravated damages may be available in tort; considers restitutionary and ‘user’ damages; sets out the date and method of assessment; deals with interest on tortious awards; and the reduction of damages through contributory negligence and mitigation. It also summarises when damages may be recoverable for a tortious wrong, including negligence. For further reading, see Practice Notes: The remedy of damages—general principles; Loss of chance damages; Claiming damages—tort and contract claims compared. It does not cover damages in clinical negligence or personal injury claims. General principles of liability in tort claims To succeed in a tort claim for damages, a claimant must, on the balance of probabilities, establish that: the...

Step-by-step guide Party A and Party B execute an International Swaps and Derivatives Association ( ISDA) Master Agreement and Schedule, and mutually confirm that they will record their currency rate swap ( CRS) Assume the opening exchange amounts for the CRS are USD 100 and €90 Assume that settlement falls due every quarter (it could also be yearly)......

Defendant insurers frequently challenge matters going to the quantum of hire charge claims. The usual areas in dispute are: need/type period rate For further guidance on credit hire claims, see Practice Notes: Credit hire—an introduction, which includes the Supreme Court case of Armstead (recovery of contractual liabilities owed by the claimant to the hire company for damage to the hire car caused by the defendant), and Credit hire—common liability issues. Need/type of replacement Where the claimant had no alternative vehicle, was too injured to drive after the accident, or was on holiday during the hire period, it is typically straightforward to show a replacement was needed. Disagreement can arise if the claimant hires, in place of their own car, an expensive or prestige model. The necessity for such a high-cost vehicle rather than a standard model may be questioned. The same approach applies to the...

Enforceability of contracts Certain credit hire contracts have been open to challenge as unenforceable when the hire company has not adhered to specific rules, whether relating to the contract’s terms or required formal steps. If a contract is unenforceable against the hirer, the consequence is that the hirer is treated as having sustained no loss and cannot recover. Consumer Credit Act and exempt agreements The House of Lords in Dimond v Lovell confirmed that these hire arrangements amount to credit agreements and fall within the Consumer Credit Act 1974 ( CCA 1974), as modified by the Consumer Credit Act 2006, unless their terms satisfy the criteria for exemption. Where an agreement is not exempt and so is regulated, it will probably be classed as improperly executed under CCA 1974, s 61(1)(a), because it omits the ‘total cash price for the services’ at that point. However, the Court of...

This Practice Note outlines when a convicted defendant can obtain a lesser sentence by entering a guilty plea, in line with section 73 of the Sentencing Act 2020 ( SA 2020), known as the Sentencing Code, and the Sentencing Council’s overarching guideline on reductions for a guilty plea. It identifies the relevant statutory route and complementary guidance applied by the courts. Basis for giving credit for an early guilty plea The court may lower the sentence it would otherwise impose to recognise that the offender has admitted the offence, and to reflect the plea itself as a formal acceptance of guilt. The level of credit depends on the point at which the defendant indicates the plea, judged by the stage reached in the proceedings. At most, a one‑third reduction is available in criminal cases, as a ceiling. In truly exceptional matters, the court may depart from the...

The nature of a life interest trust In essence, a life interest trust gives the life tenant a right to the income generated by the trust fund, or to occupy or enjoy trust property. However, the life tenant has no claim to the capital, which is preserved for the remaindermen once the life interest ends. Put plainly, A receives income for life, and on A’s death the capital passes to B. Beneficiaries can be identified expressly in the clause, or described by reference to defined terms, as appropriate in context......

Constituents of a trust When preparing instruments, bear in mind that to constitute a valid trust the core requirements are: there must be identifiable property or rights capable of being subjected to a trust the trust must satisfy the requirements for formal validity the trust terms must be sufficiently certain to make the trust administratively workable (i.e. essential validity) the purpose of the trust must be lawful A trust is void if it is created for an illegal purpose or is otherwise contrary to public policy. Property capable of being subjected to a trust Any species of property may be made the subject of a trust, provided there is no reason in law why the owner is prevented from parting with the beneficial interest, whether: under the general law, due to the specific circumstances of the...

Miscellaneous fees applicable to all insolvency processes Court fees are due when initiating certain insolvency procedures and throughout an insolvency, typically for defended actions against respondents brought by insolvency practitioners. Below we outline the present court fees payable across a range of common situations arising in insolvency work. This Practice Note does not cover the fees for claims brought under CPR 7 or CPR 8. The applicable fees are prescribed by the Civil Proceedings Fees Order 2008, SI 2008/1053, as amended, most recently by the Court and Tribunal Fees ( Miscellaneous Amendments) Order 2025, SI 2025/351, with effect from 8 April 2025. The numbers shown in the left-hand columns of the tables below correspond to the paragraph numbers in the Schedule to the Civil Proceedings Fees Order 2008, SI 2008/1053. Cheques must be made payable to ‘ HM Courts & Tribunals Service’ or ‘ HMCTS’. If there is any...

This Practice Note summarises counter-terrorist financing ( CTF) measures, covering the offences and duties found in the Terrorism Act 2000 ( TA 2000) and associated laws. It explains what constitutes terrorist financing, how it intersects with the anti-money laundering ( AML) framework, and why it matters for businesses. What is terrorist financing? Terrorist groups require money to organise and execute attacks. The TA 2000 makes both involvement in terrorist activity and the financing of terrorism criminal offences. Broadly, terrorist financing covers supplying or gathering funds from lawful or unlawful sources, intending, or knowing, that they are to be used to commit an act of terrorism, regardless of whether the money is ultimately applied to that end. Counter-terrorist financing and anti-money laundering CTF and AML are distinct concepts, though their objectives overlap. Within UK law, the CTF and AML regimes operate alongside each other. Numerous...

This Practice Note outlines the indemnity principle as it applies to the recovery of costs in litigation. The principle defines the scope of a winning party’s right to reclaim their legal expenses, marking the outer limit of any recovery. It must be distinguished from the court’s evaluation of costs on the indemnity basis, which is addressed in Practice Note: Indemnity costs orders—principles. What is the indemnity principle? When parties seek repayment of expenditure incurred during proceedings, the sum recoverable will usually be lower than the amount actually spent. Consequently, the degree of recovery can be uncertain from case to case. This typically stems from the operation of the costs rules and the requirement that costs be proportionate. In practice, claims for costs are tempered by these limits before a figure is allowed. Accordingly, recoverable sums seldom mirror the actual outlay. For further...

This Practice Note explores the particular distinct issues that arise with multi-party costs orders. It explains what constitutes a multi-party costs order and the circumstances in which it may feature in costs recovery. This Practice Note addresses severability of liabilities for costs, the formulation of costs orders, common costs orders in cases with several parties, contribution where one party has satisfied a joint or several costs order, Bullock and Sanderson orders, and the assessment of costs in multi-party litigation, including how liabilities are apportioned or shared between the paying parties concerned in the matter as appropriate. What is a multi-party costs order? A multi-party costs order is an order made in proceedings involving more than one claimant and/or more than one defendant. It may arise, for example: a claim that includes Part 20 proceedings (see Practice Note: Counterclaims and additional claims under CPR...

This Practice Note examines how a party’s behaviour shapes both the kind of costs order a court will issue and the level of costs to be awarded. It considers how such behaviour informs judicial discretion on costs throughout the lifecycle of the dispute, from pre-action conduct to final orders. Several core CPR provisions are relevant: CPR 44.2 confirms that the parties’ conduct is a factor the court may weigh. Under CPR 44.2(5), examples of conduct the court can consider when exercising its discretion include behaviour before action, as well as during the case, plus steps taken to resolve or settle the dispute and any failure to make a genuine attempt to compromise. CPR 44.4(3) addresses how conduct affects the amount of costs. See: Parties' conduct ( CPR 44.2)—principles below CPR 44.11 sets out the court’s powers where there has been...

This Practice Note summarises the range of costs orders available in the employment tribunal, including those dealing with representation and with expenses or allowances payable to an assessor or expert. It also reviews preparation time orders, wasted costs orders and pro bono costs orders. It clarifies when an order must or may be made, how a prior deposit order can affect the outcome, the levels that can be awarded, and the significance of a party’s ability to pay. The Practice Note further addresses costs warnings from the employment tribunal and between the parties, cites the Presidential Guidance, and specifies the time limit for complying with a costs order... Types of order relating to costs Employment tribunals may make the following types of order in relation to costs: Costs orders relating to representation: a direction that one party pays another for costs (fees, charges,...

This Practice Note outlines costs capping orders, setting out when the court may impose one and the range of matters it may encompass. It highlights the key points arising from Barr v Biffa Waste Services. Guidance is provided on the timing and method for making an application, together with how to fix the cap and the process for seeking a variation where appropriate. The Note also stresses that costs capping orders are distinct from protective costs orders, and that separate provisions govern their treatment on appeal... In judicial review cases, Sections 88 to 90 of the Criminal Justice and Courts Act 2015 establish a statutory framework for costs capping in such proceedings, including a dedicated judicial review costs capping order. For further detail, see Practice Note: Costs for judicial review—protective costs orders ( PCOs), judicial review costs capping orders ( JRCCOs) and...