Legal Practice Notes

This Practice Note sets out the proper treatment of limitation in matters involving claimants who fall within the Mental Capacity Act 2005 ( MCA 2005) definition of lacking capacity, or who are under 18. It clarifies the point at which time starts to accrue in these situations, drawing attention to the possible complications for protected parties. It further considers the narrow situations where a defendant’s deliberate concealment may influence the limitation period in personal injury cases. Persons under a disability Claimants under a disability For the purposes of the Limitation Act 1980 ( LA 1980), a claimant is deemed to be under a disability if they: are aged under 18, or do not have capacity (as defined by the MCA 2005) to manage legal proceedings When does someone lack capacity? A person lacks capacity for a particular matter where, at the relevant time, they cannot make the...

Section 32 of the Limitation Act 1980 ( LA 1980) This Practice Note examines LA 1980, s 32, with a focus on the court's approach to delaying limitation where claims feature fraud, deliberate concealment (including the deliberate commission of a breach of duty in circumstances unlikely to be uncovered for a period), and mistakes of law or fact. It also clarifies what amounts to 'reasonable diligence' for the purposes of s 32(1). For summaries of illustrative decisions, including those bearing on limitation under s 32, see the following Practice Notes: Limitation—illustrative decisions Limitation and extensions of time—key and illustrative decisions [ Archived] For guidance on when an extension to a limitation period may otherwise be permitted under the LA 1980, see: Limitation—extensions of time under the Limitation Act 1980 Limitation—latent damage For general guidance on limitation issues, see:...

This Practice Note examines how the Limitation Act 1980 ( LA 1980) operates, outlining its role and the circumstances and manner of its application. For help calculating limitation periods under LA 1980, including general rules on when time begins to run and when a claim is treated as ‘brought’ for limitation purposes, see Practice Note: Limitation—when will it end? For a summary of the principal limitation periods under LA 1980, see Practice Note: Limitation—the principal limitation periods. The function of limitation periods Statutory limitation periods aim to calibrate a balance between interests that compete and at times clash: the interest of the claimant in having the widest possible chance to pursue claims for legal redress, and the interest of the defendant in not being required to answer stale proceedings because: it is unjust for the...

Licensing IP rights—introduction Preparing IP licences often throws up intricate commercial and legal considerations, typically demanding extensive bargaining. This Practice Note highlights the principal, practical matters to weigh up before you draft and while you negotiate an IP licence, seen from both licensor and licensee viewpoints. At its core, an IP licence is the licensor’s consent allowing the licensee to use IP that it would otherwise be barred from exploiting. Owners may exploit and commercialise IP as either a carrot or a stick. Parties might agree terms for a mutually advantageous licence to create new offerings or reach fresh markets. Equally, an owner may take a defensive stance, pressing for settlement licences and recovering settlement payments from those already using its IP without permission. Accordingly, the initial position and broader commercial context will heavily influence both the negotiations and the eventual licence terms......

This Practice Note This Practice Note reviews the personal exposure of expert witnesses in civil litigation; for instance, experts can be referred to professional bodies and regulators. It examines an expert’s protection from claims by their own client (with reference to the Supreme Court’s ruling in Jones v Kaney) and by the other side (considering Baxendale- Walker v Middleton), together with the rationale and ramifications of the decision in Kaney. It also addresses non-party costs orders against defaulting experts, and the scope for committal and contempt of court proceedings where an expert gives a false statement. Practical guidance on expert witness immunity is included. Experts, and those who may act as experts, must be fully informed of their obligations and adhere to them. Non-compliance can lead to a range of outcomes, including diminishing the weight attached to the expert evidence, adverse costs...

Practice note This Practice Note examines where responsibility lies after an assignment of a lease term or the reversionary interest. It reviews how liabilities vary for tenants, landlords and guarantors in respect of both ‘old tenancies’ and ‘new tenancies’. Although it does not directly analyse liability between assignor and assignee (eg the seller and buyer), the principles set out in this Practice Note underpin the drafting of any property sale contract involving leases and guide how the parties should tackle drafting and negotiation of key issues, including apportionment of rents (such as service charge), rent arrears and unresolved rent reviews—see: Buyer’s practical contract negotiation collection......

This Practice Note outlines the considerations for applications seeking permission to take a child out of the jurisdiction (leave to remove). It addresses the Child Abduction Act 1984 ( CAA 1984) and the need for consent from all holders of parental responsibility. It explains the position where a child arrangements order ( CAO) is in place and applications made under section 13 of the Children Act 1989 ( Ch A 1989). It describes the steps required when a court application is necessary. It identifies the matters the court must assess and summarises guidance from relevant case law, including K v K, Re F ( Relocation) and Re F ( A Child) ( International Relocation Case). It also addresses temporary removals from the UK, including travel to a non- Hague Convention country, and suitable safeguards. What is leave to remove? A parent might seek to leave...

This Practice Note considers: the core rule on priority under the Land Registration Act 2002 ( LRA 2002), s 28 the exceptions to that rule set out in LRA 2002, ss 29 and 30 how recording an agreed notice or a unilateral notice can safeguard the priority of an interest in registered land (with practical examples) which interests are capable of protection by an agreed or unilateral notice, and the steps for entering and cancelling an agreed notice or a unilateral notice It also briefly touches on registrar’s notices. This Practice Note does not examine official searches with priority in detail—see instead Practice Note: Pre-completion searches......

Practice Note: Landlord’s consent to alterations This Practice Note outlines the options available to a landlord where a tenant has carried out unauthorised alterations: forfeiture, an injunction and/or claim for damages. For help on typical alteration covenants, and on assessing whether refusal of consent is reasonable, see Practice Note: Landlord’s consent to alterations......

This Practice Note outlines what know-how is and identifies the various methods by which it can be safeguarded, before offering guidance on matters connected to licensing know-how, including licensing within a broader research and development ( R& D) arrangement. It covers why know-how is licensed, the principal clauses of a know-how licence, IP considerations in R& D agreements and issues around co-ownership of IP rights. What is know-how? ‘ Know-how’ denotes technical or practical knowledge gained through research or experience and typically concerns how something is carried out. This technical or practical insight may be documented in any format—or retained solely in the mind of an inventor or key employee—and may include operating manuals, drawings, blueprints and other technical material. As it is not always recorded in writing, it can be hard to define. However, Article 1 of Assimilated Regulation ( EU) 316/2014, the...

This Practice Note: sets out the key UK tax rules that apply when a fixed charge receiver disposes of assets owned by a company, and addresses the principal questions that may arise when such steps are contemplated This Practice Note considers: the function of a fixed charge receiver matters around appointment and the receiver’s accounting periods that the company under receivership continues to bear tax liabilities withholding tax implications for the receiver whether the receiver’s fees and costs are tax-deductible VAT treatment for a company in receivership points arising where the company in receivership is non- UK tax resident, and practical considerations In this Practice Note: fixed charge receivers are referred to simply as receivers the company means the company whose charged assets are being sold the appointor denotes the creditor (or mortgagee) appointing the receiver, and it is assumed the receiver, the company and the appointor are unconnected and there is no tax avoidance...

Robust risk control underpins the commercial success of legal practices across the sector, in practice each day. To handle risk effectively, you must first pinpoint the threats that could affect your business. This Practice Note highlights common risks confronting law firms, helping you to craft a risk management policy. See also Practice Note: How to formulate a risk management policy—law firms. What is risk? There is a widely accepted definition of risk, i.e.: Risk = probability x impact Accordingly, for any risk faced by your business, consider two key questions: how likely is it that the risk will materialise, i.e. what is the probability? if the risk does materialise, how severe will it be, i.e. what is the impact?......

Software, in general terms, is a computer programme made up of ordered instructions that, working alongside hardware and user inputs, enable a machine to carry out a particular task. Software is grouped into types depending on the functions it makes the computer execute. For instance, operating systems like Microsoft Windows and Apple’s mac OS oversee and coordinate a computer’s core activities. They manage resources and co-ordinate essential processes. The operating system recognises input from peripherals such as the keyboard and mouse, routes output to the screen, and handles memory allocation across programmes. At the other end are applications that run on top of the operating system and deliver a specific, visible function for the user. They present a clear, user-facing capability. Examples include word processors, media players, and games. A software licence is a contract giving a customer permission to use...

Scots contract law Although they have separate origins, Scots contract law has, in many respects, drawn closer to the English position. English-law notions such as undue influence and anticipatory breach have been taken into Scots contract law, and some leading authorities coincide across both systems. Nonetheless, there remain important differences that it is sensible to keep in view. The aim of this Practice Note is to point out some of the key differences between Scots and English contract law in these areas......

This Practice Note examines the statutory route for presenting a winding-up petition on the just and equitable basis under section 122(1)(g) of the Insolvency Act 1986 ( IA 1986), explaining its nature and when it may safeguard minority shareholders’ interests. It outlines who may petition, which companies can be targeted, and the rationale for ordering a company to be wound up (including unfair prejudice). It also addresses the relevance of the petitioner’s own behaviour (such as delay) and the remedies available. For a guide to terminology used in this Practice Note—see the section below: Key terms encountered when applying for a winding-up on the just and equitable ground. For procedural guidance, see Practice Note: Just and equitable winding-up - the procedure. What is a just and equitable winding-up petition? A petition to wind up a company on the just and equitable ground is a...

This Practice Note addresses the procedural matters relating to juries under the Act 1974. Who is entitled to serve on a jury? Section 1 of the Act 1974 ( JA 1974) provides that all persons may sit on a jury so long as: the individual is listed as a parliamentary or local government elector is aged at least 18 and not over 75 years of age has been usually resident in the UK, the Channel Islands, or the Isle of Man for any span totalling at least five years since reaching the age of 13, and is not barred from jury service The maximum age limit for jurors is 75 years old......

Administrative court review of criminal proceedings Judicial review is the means by which the courts oversee how public authorities discharge their public functions, exercising a supervisory jurisdiction to secure lawful decision-making. Such cases are typically brought in the Administrative Court, which forms part of the King’s Bench Division ( KBD) of the High Court. For further information, see Judicial review in criminal proceedings—overview. Judicial review of a decision of the magistrates’ court An applicant may seek judicial review of a magistrates’ court decision in the Administrative Court within the KBD of the High Court. Challenges can extend to choices to prosecute or not to prosecute, among other determinations; see Practice Note: Judicial review of prosecution decisions......

Judicial deference Judicial deference is often characterised as the principle that 'respect is a central concept in judicial review'. It is not confined to matters concerning human rights. Where human rights are engaged, however, it relates to the weight courts will accord to the considered views of Parliament and/or the Executive when determining whether a given decision or a particular item of legislation amounts to a proportionate interference with one or more rights under the European Convention on Human Rights. Although akin to deference in several ways, the margin of appreciation is a separate doctrine applied by the European Court of Human Rights ( ECt HR). It encapsulates the notion that member states are, in principle, better placed to assess local needs and circumstances than an international court and should therefore be granted a measure of leeway as to the manner in which they...

When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines ( JCG)...

This Practice Note is concerned with secondary liability, sometimes called accessory liability: the liability that attaches to parties to a joint enterprise. In criminal law, when two or more individuals set out on a common venture, whether as principals or as those assisting, each is answerable for deeds carried out in furtherance of that venture, provided the requisite intent is present, save where the principal departs from the agreed boundaries. In the 2016 decisions of R v Jogee and Ruddock v The Queen, the Supreme Court clarified and reinstated the proper approach to the mental element of intention that must be proved where a defendant is alleged to be a secondary participant in an offence; see News Analysis: Supreme Court rules on ‘joint enterprise’. Traditionally, a person assisting could be fixed with liability for an offence carried out by the principal if that person foresaw the...