Legal Practice Notes

There are two forms of general meetings under the Companies Act 2006 ( CA 2006) Under the CA 2006, two types of members’ meetings exist: general meetings and annual general meetings ( AGMs). Members may convene a general meeting at any time, and as often as needed within a year, to pass resolutions authorising certain changes or approving particular actions. A public company is required to hold an AGM every year within six months beginning on the day after its accounting reference date. A private company has no annual obligation to hold an AGM, unless it chooses to do so, or its articles of association stipulate that one must be held each year. In a private company, members can adopt resolutions either at general meetings or by written resolution. In a public company, members may pass resolutions only at general meetings. The CA 2006...

NOTE : On 2 December 2024, the Lord Chancellor confirmed a positive 0.5% discount rate, taking effect from 11 January 2025. Schedule A1 to the Damages Act 1996 stipulates that later reviews must occur within five years of the previous review’s conclusion, so the next review is due to commence on or before 2 December 2029. Life expectancy statistics Life expectancy tables are produced and issued by the Office for National Statistics ( ONS). Now known as Life Tables, they are published annually. The results are calculated using population estimates together with birth and death records covering a three‑year period. They present the average number of years a person might expect to live from each age between 0 and 100, with separate series for males and females. Inevitably, these tables do not provide detailed insights for individuals or specific cohorts. They represent averages across the whole...

There are two kinds of ‘burden’ in criminal proceedings: the legal burden the evidential burden The legal burden A party carries the legal (also termed ‘the persuasive’) burden when that party bears the responsibility to establish a fact or issue in the case to the requisite standard of proof. Ordinarily, this burden rests with the prosecution (subject to limited exceptions mentioned below). Thus, where a defendant enters a not guilty plea, the prosecution must prove every element of the offence—for example, the defendant’s identity, the character of the act, any required knowledge or intent, and the refutation of any defences raised. That duty also includes proving negative elements of an offence, such as the absence of consent in a rape or assault allegation. It is for the jury or the magistrates to decide whether the burden has been satisfied. Whichever...

The statutory burden of proof test Eq A 2010 This Practice Note examines the two-step statutory test on the burden of proof that covers all unlawful conduct (ie discrimination) and equality of terms (ie equal pay) claims brought under the Equality Act 2010 ( Eq A 2010), but excludes criminal offences. Under Eq A 2010, the burden of proof regime establishes a two-stage framework for addressing proof. It applies to all proceedings concerning a contravention of Eq A 2010, encompassing any infringement of an equality clause or rule. The framework is not engaged in relation to proceedings for any criminal offence created by Eq A 2010. The burden of proof is likewise not engaged when deciding whether an exercise satisfies the statutory criteria for a job evaluation study for the purposes of an equal pay claim, since the burden only operates once a prima facie case on...

Where a landlord grants a lease in return for the tenant constructing a new building or undertaking works to an existing structure, it is often described as a ‘building lease’. If such a building lease engages section 19(1)(b) of the Landlord and Tenant Act 1927 ( LTA 1927), then, in defined situations, the legislation steps in to displace the lease’s express alienation restrictions. This Practice Note examines the reach and impact of LTA 1927, s 19(1)(b). For general guidance on assignment and underletting, see: Assignment and underletting—overview. Building leases within LTA 1927, s 19(1)(b) LTA 1927, s 19(1)(b) applies to leases granted: for a term exceeding 40 years where consideration consists wholly or in part of erecting, or substantially improving, adding to or altering buildings where the landlord is neither a government department, a local or public authority, nor a statutory or public utility company; and the demise is not an...

No rule expressly obliges firms to operate a file audit or review process. Nonetheless, practices holding, or seeking, Lexcel accreditation must maintain a file review system, and professional indemnity insurers commonly enquire about such systems as an indicator of sound risk management. While the SRA provides no guidance on how to carry out file audits or reviews, the Lexcel standard requires reviews to be regular, the procedure to be independent, and to assess either the management of the file, its substantive legal work, or both, and to include: setting criteria for selecting files specifying the number of reviews and how often they occur keeping a record of each review on the matter file and centrally ensuring any remedial action identified is completed within 28 days and verified by the reviewer requiring the designated supervisor to review and monitor data...

This Practice Note sets out a concise and accessible overview of the principal considerations when pursuing a private prosecution. It is intended as a practical aid for anyone contemplating commencing a private prosecution matter. For a general primer on private prosecutions, consult the Practice Note: Private prosecutions—an introductory guide. Starting a private prosecution—initial considerations A private prosecutor may act in person, or may appoint lawyers to manage and conduct the proceedings for them. The points below are among the first issues the lawyers and private prosecutors (the private prosecution team) should carefully weigh when deciding whether to commence a private prosecution. Duties of the private prosecutor and prosecution team A private prosecutor bears the same obligation as a public prosecutor to properly fulfil the role of a minister of justice. To meet this obligation, prosecutors—while not compelled—ought to seek to follow the Crown...

A personal injury claim founded on a breach of statutory duty can, in principle, be pursued against any body bound by that duty, whether a public authority or a private organisation. However, relatively few statutory provisions actually create a cause of action in private law. The difficulty lies in pinpointing which enactments enable a claimant to bring proceedings for breach of statutory duty... Statutory provision expressly permits claimants to bring a claim for breach of statutory duty At times, the legislation makes it explicit that a failure to discharge the relevant obligation—whether effectively or at all—is intended to give rise to a right to sue for breach of statutory duty. Where a statute either (a) expressly confers a right of action, or (b) adjusts existing common law duties, the position is generally relatively clear. The most familiar example for personal injury...

Background— EU law in the UK Pre-exit day The European Communities Act 1972 ( ECA 1972) was enacted to implement the United Kingdom’s obligations, as a Member State, under the relevant EU treaties and to ensure adherence to EU law. Under ECA 1972, s 2(1), certain EU rights and obligations intended to have direct effect applied in the UK without the need for additional domestic legislation. This encompassed rights under the EU Treaties and EU regulations setting out detailed legal rules. Other forms of EU law took effect via UK regulations made under ECA 1972, s 2(2), or, in some circumstances, through separate Acts of Parliament. This pathway covered EU directives, which stipulate overarching aims or frameworks while leaving each Member State to make its own provision to secure the required legal outcome. In its operation within Member States, EU law is...

Availability of a civil remedy under statute Claims alleging breach of statutory duty are widespread, mirroring the breadth of legislation that structures interactions between private persons and public authorities. These claims reflect the volume of statutory regulation designed to manage such relationships. While, in the workplace context, civil liability for breach of statutory duty has largely been abolished for incidents occurring on or after 1 October 2013, many significant fields still permit a civil claim for such breaches. Accordingly, extensive areas remain in which a civil remedy for breach of statutory duty is available, despite that change in the workplace context. However, not every statutory obligation carries a civil remedy. Certain enactments are introduced to adjust or elucidate pre‑existing common law causes of action. Illustrations include statutes regulating occupiers’ civil liability. The common law principles that once governed an occupier’s duty to visitors were...

This Practice Note addresses breaches of police bail conditions and failures to attend the police station or court following release on bail from the police station. For general guidance on police bail, see Practice Notes: Police bail, Applicable bail period and How to make representations for bail at the police station. Breach of pre-charge bail conditions Where a police officer has reasonable grounds to believe that pre-charge bail conditions have been broken, they may arrest the suspect without a warrant. However, breaching a pre-charge bail condition is not, in itself, a criminal offence. Once in detention, a decision must be taken on whether to charge the suspect with the offence for which they were originally bailed, or whether to re-release them on bail. On return to the police station, the PACE 1984 clock (the 24-hour detention period) continues from the point at which the suspect was last in...

The power to borrow In broad terms, the authority to borrow will be located in one of the following: in the governing document in the Trusts of Land and Appointment of Trustees Act 1996 ( TLATA 1996) in the Trustee Act 2000 ( Tr A 2000) by implication alone It would be unusual for a modern governing document to omit a borrowing power. The Charity Commission’s model documents all contain the requisite authority. Where the governing document offers no help, the charity must, in the first instance, turn to statutory provisions. Prior to 1 January 1997, trustees were able to rely upon the provisions in sections 29 (power to borrow) and 71 (power of a tenant for life) of the Settled Land Act 1925 ( SLA 1925). This now serves only as a matter of historical interest and evidence that a charity...

What is a borrowing base facility? Borrowing base facilities (‘ BB Facilities’) are a form of trade finance. They are working capital arrangements that provide short-term liquidity either through advances or by issuing trade instruments, such as letters of credit (see: Letters of credit—overview) or on demand guarantees (see: On demand guarantees/bonds—overview). These facilities are fully secured against current assets—commonly trading receivables, inventory (i.e. goods in storage or in transit), cash and contractual rights—of the borrower and/or other security providers. Consequently, the borrower’s available capital at any given time is directly linked to the value of the assets securing the lender(s). BB Facilities are typically offered to trading companies on a revolving basis to fund the purchase, storage, transport and sale of prescribed commodities. They are often used to finance a pool of traded assets subject to high price volatility. Reflecting this, a standard...

Withholding tax on UK source interest payments The obligation to deduct tax from UK‑source interest (ie withholding tax) is a key issue to weigh up when launching a bond in the UK. Where a deduction must be made, the impact is: at best, a cash flow timing drawback, ie the UK tax withheld can be credited against other UK or foreign tax due on the interest; and at worst, a permanent cost, ie the bondholder either has no liability, or a lower liability than the amount withheld, and cannot reclaim it. Accordingly, in both cases a bondholder would prefer to receive interest gross (ie with no deductions). Consequently, whether tax withholding will apply to a bond is a critical consideration for the issuer and for the managers or arrangers seeking subscribers. In the context of retail bonds (ie where the bond is issued to consumer...

Scope of bias and pre-determination in planning cases Bias and pre-determination can surface in planning matters when the decision-maker — including a local planning authority ( LPA), a planning inspector or the Secretary of State — determines an application or an appeal. Bias arises where a planning officer, councillor, inspector or the Secretary of State (the decision-maker) displays partiality, whether against or in favour of an individual, company, group, or a particular proposal. Pre-determination occurs when the decision-maker comes to the issue with a closed mind. Planning decision-makers owe a duty to act fairly. Evidently, where a decision-maker is biased or has pre-determined the outcome, they have not acted fairly. Any such decision is made in bad faith and is susceptible to being quashed if challenged by judicial or statutory review. See Practice Notes: Determining planning...

Children’s rights issues in the immigration context Every immigration professional must be able to recognise and assess: when a client may depend upon a child welfare or best interests argument how a child’s best interests align with the Immigration Rules and human rights claims, and the most effective way to properly uphold the rights of a child affected by an immigration decision, ensuring their views are heard in the process This Practice Note surveys international children’s rights, pinpoints where these must be considered under UK immigration law, and explains when there is a duty within immigration matters to safeguard children’s welfare. It also sets out the situations in which a legal challenge can be brought for a failure to safeguard a child’s welfare in an immigration context......

The Criminal Justice Act 2003, s 101(1)(e) Section 101(1)(e) of the Criminal Justice Act 2003, often termed ‘gateway E’, enables a co‑defendant to introduce evidence of a defendant’s bad character where it has substantial probative value on an important issue contested between them. Only a co‑accused can adduce such material, whether in their own evidence or through cross‑examination of a witness. Importantly, neither CJA 2003, s 101(3) nor s 78 of the Police and Criminal Evidence Act 1984 (exclusion of unfair evidence) applies to evidence advanced by a co‑defendant. Nevertheless, a judge may exclude it under CJA 2003, s 111 if a co‑accused’s application is deliberately late and intended to ambush their co‑defendant (see R v Musone). The statutory meaning of ‘bad character’ appears in CJA 2003, s 98, and encompasses evidence of previous convictions. See Practice Note:...

This Practice Note explores the following data protection, privacy and security matters arising in connection with the use of autonomous and connected vehicle technology: The technology Declaration of Amsterdam Cooperative Intelligent Transport Systems ( C- ITS) United Kingdom General Data Protection Regulation Privacy and Electronic Communications Regulations 2003 Cybersecurity The Product Security and Telecommunications Infrastructure Act 2022 Connected and autonomous vehicles in the EU International Practical issues For further detail and context on additional UK legal considerations linked to this technology, see the Practice Notes: Autonomous vehicles—key legal issues and Autonomous vehicles and insurance, and for a concise overview of dates and key points, see: UK automated vehicles—tracker. To monitor developments within the EU, also consult the Practice Notes: Automated vehicles—key legal issues in the EU and EU automated vehicles—tracker. The technology Contemporary vehicles already incorporate a suite of external communications, such as satellite navigation, in-car entertainment and emergency assistance, capable of...

Where a lease is assigned, the landlord may insist that the transferor tenant enters into an authorised guarantee agreement ( AGA) pursuant to section 16 of the Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995). This Practice Note examines what amounts to an AGA and explains how it functions to allow the outgoing tenant to underwrite some or all of the incoming tenant’s duties under the lease. It addresses the appropriate (and inappropriate) contents of an AGA, the status of the outgoing tenant’s guarantor on assignment (including guarantees of an AGA, often referred to as a GAGA), excluded assignments, and the release of the former tenant and its guarantor. What is an authorised guarantee agreement ( AGA)? An AGA is a guarantee provided by the assigning tenant which satisfies the requirements of LT( C) A 1995, s 16. Upon a lease...

Assignments by way of security can take various forms, and it is important to understand how they are created and their effect. Security over choses in action, such as debts and other contractual rights, is often taken by means of an equitable or statutory assignment used as security. This Practice Note explains the following: what assignments by way of security are which categories of assets they are typically used for whether they take legal, statutory or equitable form and the advantages of the statutory form why serving notice of an assignment by way of security matters What is an assignment by way of security? Assignments by way of security are a form of mortgage. They typically involve: an assignment (ie transfer) of rights by the assignor to the assignee, subject to an obligation to reassign those rights back to the assignor upon the discharge of the obligations that have been...