Legal Practice Notes

This playbook provides guidance for drafting and negotiating a confidentiality agreement (also known as a non-disclosure agreement or NDA) from a pro-discloser position. It sets out preferred stances and alternative fallback options for the clauses most often contested in these agreements. The template suits solicitors representing the discloser, whether operating in-house or working in private practice. Users should adapt and tailor it as needed to address client-specific issues and safeguard the client’s interests in full. The level of risk referenced throughout may vary depending upon the particular client. Be aware it omits fallbacks for boilerplate clauses, for situations where confidential information comprises personal data, and for detailed intellectual property rights provisions. For a complete index of related confidential information materials, see: Confidential information—overview. For the underlying template agreement, consult: Precedent: Confidentiality...

This Practice Note examines success fees, a type of charge that may become payable when a claim succeeds and has been funded by a conditional fee agreement ( CFA). It considers: what is meant by the term ‘success fee’? are success fees recoverable? what constitutes a 'success' to trigger payment of the success fee? what requirements must be satisfied when including a success fee in a CFA? what is an appropriate success fee percentage? appeals against decisions concerning success fee percentages whether the success fee under the funding agreement is payable by the other side as costs transitional arrangements or exceptions applying post-1 April 2013 For further guidance on dealing with CFAs, see Practice Notes: Conditional fee agreements—definition and requirements Types of conditional fee agreements Conditional fee...

Context When an acquiring authority intends, as part of a compulsory purchase order ( CPO) to which the Acquisition of Land Act 1981 ( ALA 1981) applies, to obtain any land or interests, or to create new rights over land that benefits from special protection, additional procedures and/or safeguards come into play. The protected land categories, and the processes that must be observed for each, are prescribed in ALA 1981, Pt III (for the acquisition of land or interests) and ALA 1981, Sch 3, Pt I (for securing rights by creating new rights) and are discussed below. In England, the Compulsory purchase process: guidance, and in Wales, the Compulsory Purchase in Wales and ‘ The Crichel Down Rules ( Wales Version 2020)’ ( Circular 003/2019) (together, the CPO Guidance), provide advice on how those provisions should be applied in practice. It is crucial that land with...

When someone acquires the share capital of a company, the deal is commonly described as one of the following: a completion accounts deal an accounts date deal a locked box deal Each label captures how the parties set or refine the purchase price for the target and affects the extent to which the buyer is safeguarded against historic tax exposures under the tax covenant (also called a tax deed). In virtually every transaction, a headline price for the shares is agreed first. That figure is then adjusted using an agreed approach—the most prevalent being completion accounts, accounts date, or locked box. For more detail on the purpose and effect of a tax covenant, see Practice Note: Why have a tax covenant? Completion accounts Under a completion accounts deal, the consideration is adjusted by reference to a set of accounts prepared as at the...

Competency—general rule The usual method of presenting evidence in criminal proceedings is, in practice, via a witness’s testimony. A witness is regarded as competent where, as a matter of law, a party may call them to give evidence. Everyone is treated as competent to testify, whatever their age, and at every stage of criminal proceedings, but there are two exceptions: a person is not competent in criminal proceedings if, in the court’s view, they are unable to understand questions put to them as a witness and to give answers to those questions that can be understood a person charged in criminal proceedings is not competent to give evidence for the prosecution in those proceedings (whether tried alone or together with a co-accused) (see further below: The accused—evidence on behalf of the...

This Practice Note sets out the rules that, with effect from 8 July 2015 (or 15 July 2015 for corporate partners): bar banking companies from deducting specified compensation outgoings for tax purposes, and require an amount equal to 10% of the non-allowable compensation to be brought into the banking company’s taxable profits This Practice Note does not address the recipient’s tax position on bank compensation. That question has been examined in cases including O’ Neil v HMRC and Hackett v HMRC. For further detail, see Practice Note: Direct tax treatment of damages and compensation payments. Reasons behind the rules The government introduced measures denying relief for banks’ compensation payments and treating banks as receiving a notional trade receipt of 10% of the disallowed amount, in order to: ‘protect the Exchequer from banks’ past management failures’, and ‘ensure the [banking] sector makes an...

There is a broad range of arbitral institutions, organisations and rule sets, and the nuances between them are not always clear. The tables below set out comparisons of selected core provisions from several of the most frequently applied international arbitration rules. For fuller guidance on principal rule frameworks, the Overview documents in the ' Related documents' offer a helpful place to begin. For a discussion of how institutional arbitration differs from ad hoc arbitration, consult the Practice Notes: Institutional arbitration—an introduction to the key features of institutional arbitration and Ad hoc arbitration—an introduction to the key features of ad hoc arbitration. Choosing arbitration rules Parties who opt for arbitration rather than litigation seldom craft their own procedural regime for the arbitration, even though they are free to do so because arbitration rests on consent. More commonly, they agree to adopt the rules of an...

Migration Migration concerns a change in a company’s tax residence. A business might choose to migrate for numerous reasons: its fiscal profile in the current jurisdiction, or its capacity to secure relief under double tax treaties ( DTTs). Equally, shifts in a company’s operations or governance can make an alteration of tax residence necessary or beneficial. For an outline and comparison of the factors when selecting a tax jurisdiction for a corporate group’s holding company, see Practice Note: Holding company jurisdictions—tax considerations. In practice, there are several routes by which a UK tax resident company (or group) may move from the UK, or restructure to reach an equivalent outcome for tax purposes. As set out below, these include: direct emigration—where a UK tax resident company relocates its tax residence outside the UK corporate inversion—by inserting a new, non- UK resident holding company above the...

A company limited by guarantee is a corporate form where members promise to contribute to the company’s assets if it is wound up. This Practice Note outlines the principal characteristics of a guarantee company and explains why such a vehicle might be chosen to run a business rather than a company limited by shares... What is a company limited by guarantee? Limited companies fall into two categories: limited by shares or limited by guarantee. In a guarantee company, the members agree to pay a specified amount towards the company’s assets should it be wound up. A company limited by guarantee cannot be a public company... Most companies limited by guarantee have no shares, because since 22 December 1980 (1 July 1983 in Northern Ireland) it has not been possible to form a guarantee company with a share capital. Those with a share capital can be public or...

An introduction to contracts for the sale and purchase of commodities Contracts for the sale and purchase of commodities sit at the centre of international trade. A single deal for a particular commodity will typically involve several additional contracts or commercial arrangements, including but not limited to: a contract for the transport of the commodity by sea and, possibly, by road and/or rail a contract of insurance the execution of a bill or exchange, or the opening of a letter of credit or other documentary credit Many, though not all, disputes stemming from contracts for the sale of commodities and related agreements are resolved by arbitration. As outlined below, numerous bodies that create standard form contracts or deliver services for specific trade sectors also offer arbitration facilities. For further details on commodities arbitration, see Practice Note: Commodities...

This Practice Note explores the rigorous obligations governing contempt of court applications under CPR 81 (also known as 'committal proceedings'), and the court’s method of addressing procedural defects in contempt claims, including when the court might excuse non-compliance or strike out proceedings because of it. It further considers when a party may discontinue contempt proceedings, and the potential costs consequences of that choice. In broad terms, the procedural steps and matters to be proved are examined in greater detail in Practice Notes: Civil contempt proceedings—nature and legal framework, Civil contempt proceedings—application considerations, and Civil contempt proceedings—court order requirements, together with related materials covering each category of contempt. Compliance with a strict regime As set out in Practice Note: Civil contempt proceedings—application considerations— Compliance with a strict regime, compliance with the requirements of CPR 81 when making these applications is mandatory unless the court directs...

This Practice Note explains when permission is needed to bring contempt proceedings under CPR 81 (also known as ‘committal proceedings’), together with the manner and forum in which any application for permission should be made. It also considers the proper forum for contempt proceedings more broadly. Types of case requiring permission CPR 81.3(5) states that leave to pursue contempt is only necessary in two categories: interference with the due administration of justice, save in relation to ongoing High Court or County Court proceedings; and an allegation that a person knowingly made a false statement in any affidavit, affirmation or other document verified by a statement of truth, or in a disclosure statement For more information on these types of contempt, see: and False statements. CPR 81.3 specifies the court to which the permission application should be directed, where permission is...

All criminal cases begin in the magistrates' court however serious the offence. Every criminal matter starts in the magistrates' court, however grave the offence......

Legislative changes effective from 1 October 2015 created a right to collective redress for those affected by anti-competitive behaviour. This includes an opt-out mechanism, enabling an appointed class representative to recover damages for all comparably placed individuals who have not expressly chosen to withdraw. For a general overview of the UK private actions landscape, see UK damages actions... Overview of the process The summary below outlines the collective procedure before the Competition Appeal Tribunal ( CAT) and highlights key distinctions from litigation in the High Court. Topics addressed include: sources of authority how claims are commenced issue of the collective proceedings order rights of class members, and distribution of awards Sources of authority The CAT does not directly apply the Civil Procedure Rules ( CPR) governing cases in the High Court and County Court. It operates under its own...

Scope of this Practice Note The Financial Services Authority ( FCA)’s Chapter 4 rules in the Conduct of Business sourcebook ( COBS 4) broadly apply to firms when they communicate with a client or a prospective client while undertaking designated investment business, Mi FID business, equivalent third‑country or optional exemption business, and when they communicate or approve a financial promotion relating to investment business. This Practice Note forms part of a series reviewing COBS 4 and should be read together with the following Practice Notes: Introduction to the FCA’s COBS 4 rules Application of the FCA COBS 4 rules FCA COBS 4 rules— Compiling financial promotions FCA COBS 4 rules— Form and content of promotions COBS 4— Direct offers and cold calling COBS 4— Approval and confirmation of compliance of financial promotions and record keeping COBS 4— Promotion of restricted mass market investments and non‑mass market...

This Practice Note reviews the principal legal and commercial considerations for cloud services, including: Due diligence Contract documents Service description Service levels Fees Data protection Data portability and backup Security Record keeping and audit rights Compliance with laws Intellectual property Supplier liability for content Liability under the contract Application of TUPE Variation of terms Suspension and termination rights Business continuity and disaster recovery Governing law and jurisdiction Export control laws Sector-specific regulation and guidance International laws For an outline of fundamental cloud concepts and further context, see Practice Note: Cloud computing—introduction. For analysis of laws relevant to cloud services across multiple worldwide jurisdictions, see Practice Note: Lexology Panoramic: Cloud Computing. This note is primarily directed at...

Conflicts arise in two categories: own interest conflicts (also termed solicitor–client conflicts) and client conflicts of interest. This Practice Note outlines when you may proceed where an actual or possible client conflict exists between two or more clients in a conveyancing or property context. It reflects the SRA Standards and Regulations. For broader regulatory guidance on conflicts, see the Practice Notes: Conflicts of interest—law firms and solicitors and Conflicts of interest—systems and controls. What is a client conflict of interest? A client conflict of interest occurs where your distinct duties to promote the best interests of two or more clients clash in the same matter or a related matter. The SRA describes this simply as a ‘conflict of interest’. You must not act on a matter, or any particular aspect of it, if such a conflict exists or there is a...

This Practice Note summarises the obligations in the SRA Accounts Rules, effective from 25 November 2019, concerning client accounting procedures and records. It also draws on the SRA’s supporting guidance, Helping you keep accurate client accounting records. Forming part of the SRA Standards and Regulations, the Accounts Rules highlight the core principles of: keeping client money distinct from the firm’s own funds returning client money promptly when a matter concludes using client funds solely for their intended purpose proportionate duties on firms to obtain accountants’ reports The Accounts Rules are succinct—just over six pages of rules with a three‑page glossary—and are supported by a broad range of guidance. See also Precedents: Accounts manual for staff—law firms and Accounts manual for accounts or finance team—law firms. Responsibility for compliance Your firm’s managers are jointly and severally responsible for compliance. A manager includes a sole...

Nature of rights under the Consumer Protection Act 1987 It is essential for practitioners to grasp the difference between the rights granted by the Consumer Protection Act 1987 ( CPA 1987) and those arising under the Consumer Rights Act 2015 ( CRA 2015). Whereas CRA 2015 regulates the contractual relationship between seller and consumer, CPA 1987 affords recourse against ‘producers’. CPA 1987 does not curtail a claimant’s scope to pursue alternative remedies against that producer (or any other relevant person in the supply chain), for example in negligence or by alleging breach of contract. Accordingly, in practice a claimant may, where appropriate, advance multiple causes of action. It is therefore common for overlapping routes to be pleaded together within the same proceedings, often. See Practice Notes: Product liability—claims in negligence and Product liability—claims in contract. For further guidance on CRA 2015, see Practice Note:...

A child means any person under 18. Practitioners must heed crucial procedural points in matters involving children, with CPR 21 setting out the core provisions. Where a child features in a claim, they are most often the claimant pursuing the case, though proceedings can, on occasion, be issued against children... Litigation friends Requirement for a litigation friend In civil proceedings, a child must conduct the case through a litigation friend, unless the court directs otherwise. Before a litigation friend is appointed, and without needing the court’s permission, the only steps permitted are: issuing and serving a claim form applying for the appointment of a litigation friend Unless the court orders otherwise, a person may not, without permission, make an application against a child before proceedings have begun, or take any step in the proceedings—other than issuing and serving a claim form or applying for the...