Legal Practice Notes

This Practice Note reviews the occupier’s duty of care towards individuals entering premises without consent, with principal reference to the Occupiers’ Liability Act 1984 ( OLA 1984). It outlines what amounts to an ‘unauthorised visitor’, identifies when duties can be triggered, the extent of those obligations, and when an occupier can avoid liability for injury caused by dangers arising from, or connected with, the condition of the premises. Background The Occupiers’ Liability Act 1957 ( OLA 1957) established a common duty of care owed by occupiers of premises. That duty was ‘common’ in that it applied to various categories of lawful, or authorised, visitors, such as invitees, licensees, and those whose right to be on the premises derived from a contract. Under OLA 1957, no duty was owed to unauthorised visitors or trespassers. The enactment of OLA 1984 introduced a new duty owed by...

CASE HUB (date of judgment—19/01/2017) See further: timeline and related/relevant cases Case facts ARCHIVED — this archived case hub records the position as at the decision of 19 January 2017; it is no longer maintained. Outline Appeal lodged by the European Commission against the General Court’s judgment partially annulling Commission letters that sought late‑payment interest on a cartel fine issued under the Commission’s ‘ Acrylic glass cartel’ decision. The interest demanded had accrued on a fine levied on Total and Elf — parent companies held jointly and severally liable for the involvement of their subsidiary, Atofina (now Arkema), in the cartel (relating to the supply of a glass alternative known as ‘acrylic glass’) — and arose in the context of measures subsequently adopted by the Commission to give effect to General Court rulings which lowered the fine imposed on Arkema while upholding the parents’ liability for Arkema’s...

A clear line should be drawn between disclosure by trustees under trust law, arising from beneficiaries’ rights to receive information, and ‘non-party’ disclosure by trustees in litigation, whether given voluntarily or compelled by a court order. Trustees owe beneficiaries a duty to account, as stated by Millet LJ in Armitage v Nurse, and so should act co‑operatively when dealing with proper information requests. Properly exercising disclosure forms part of the trustees’ fiduciary obligations. When asked to disclose, trustees ought to consider whether there is any sound reason to refuse. Beneficiaries do not have a proprietary entitlement to inspect trust documents; rather, they have the right to require disclosure of documents and information rooted in the trustees’ duty of accountability. The decision in Dawson Damer v Taylor Wessing LLP may allow a beneficiary to obtain material not available under trust law if the request can be...

Evidence of a defendant’s good character in criminal proceedings is admissible and may relate to propensity, credibility, or both: propensity — the defendant is less likely to have committed the charged offence credibility — the defendant is more truthful than a person without such character Procedure for giving good character directions As a lack of convictions does not of itself prove good character, where reliance is placed upon it, it is the responsibility of defence counsel and the defendant to ensure the judge is made aware. If there is any uncertainty, it is good practice for the judge to raise the point with counsel. Any proposed good character direction should be provided to counsel, and counsel for both the prosecution and the defence should be given the chance to make submissions ( R v Gonzales [2004] EWCA Crim 2117 (not reported by Lexis...

What is microfinance? The Consultative Group to Assist the Poor ( CGAP) describes ‘microfinance’ as the provision of loans, savings and other basic financial services to the poor. Stakeholders interpret microfinance through their own lenses and thus tend to define it accordingly. Governments regard it as social protection. Donors emphasise its capacity to achieve poverty reduction. Commercial insurers see a pathway to large under-served markets. Analysts use it to spotlight the scale of the ‘bottom of the pyramid’. Academics consider it a crucial financial service for sustainable economic growth. These views broadly mirror those for conventional insurance, except for the clearly specified target group: low-income people. Put simply, microfinance is a collection of practices created to widen access to financial services (including loans, savings products, insurance and remittance services) for low-income clients. Typically, these clients are drawn from the poor...

ARCHIVED : This Practice Note has been archived is not maintained. This archived Practice Note is not maintained. It brings together and distils notable historic decisions and case law outcomes connected to the Freedom of Information Act 2000 ( FIA 2000). For the most recent developments in case law, see the Freedom of information case tracker. Under each heading, the tables identify significant rulings from: Court of Appeal Upper Tribunal ( UT) First Tier Tribunal ( Information Rights) ( FTT) Information Commissioner’s Office ( ICO) For ease of use, the tracker is organised by the principal provisions and issues addressed under the FIA 2000, including: information held by a public authority requirements for a valid freedom of information request fees and cost of compliance time frame for compliance means of communicating information vexatious and repeated...

This Practice Note sets out ways to locate pro bono opportunities and includes indicative examples of completed pro bono projects. Bear in mind that any legal assistance provided voluntarily by a lawyer or an organisation for a charitable purpose amounts to pro bono; these examples are not exhaustive. Sources of pro bono work Two common avenues for offering pro bono support are: collaborate with a charity undertake pro bono litigation Do not accept every pro bono request that appears—you should first gain a clear view of the opportunity, assess whether it suits your organisation, and confirm the lawyers involved have the time and expertise. Precedent: Pro bono—opportunity assessment form supports weighing pros and cons before deciding whether to proceed with a project or initiative. Working in partnership with a charity Many organisations do not routinely encounter individuals who need free legal services in the...

The Immigration Rules set out comprehensive schedules of actions expressly banned and clearly allowed for visitors of all kinds. When deciding an application for entry clearance, leave to enter or remain as a visitor, the Home Office assesses whether all the proposed activities amount to any banned conduct or sit within the permitted activities for the relevant visitor route and category applied for. Certain activities are only permitted where visitors satisfy further eligibility criteria set out in and detailed within the Immigration Rules, Appendix V: Visitor, paras V 5.1- V 15.4. For more detail and context, see Practice Note: Visitor: eligibility— Additional eligibility requirements for specific types of visitor applicants. Each time a visitor seeks to enter at the frontier, unless using an e Gate, they will normally be asked to explain clearly what they plan to do in the UK and for how long in...

Unitranche facilities have become a core source of financing for both financial sponsor-backed and non sponsor-backed borrowers in the European leveraged loan market. First gaining traction in the US mid‑market in 2005, they have, from 2012 onwards, steadily captured a share of the European mid‑market each year. This Practice Note describes unitranche facilities, sets out the benefits and drawbacks for borrowers, and examines their principal features in depth. For broader introductory material on acquisition and leveraged finance, see Practice Note: Acquisition finance—introductory guide. For explanations of terminology used in this Practice Note, see: Glossary of acquisition finance terms and jargon. What is a unitranche facility? In essence, a unitranche facility is a single‑tranche term loan bearing a blended senior/junior interest rate, typically recorded in one loan agreement. Unitranche financings are commonly arranged by non‑traditional lenders, ie private debt funds and other...

Settlements Pursuant to section 18(1)(h) of the Mental Capacity Act 2005 ( MCA 2005), the court is empowered to sanction the settlement of any of P’s property, either for P’s advantage or for the benefit of others. Mirroring the position on statutory Wills, authorising a settlement for P is a function exclusively for the court and does not come within a deputy’s ordinary powers to administer P’s property and affairs; distinct permission must always be sought by way of a dedicated application for specific authority. In assessing any such application, the court must be assured that P’s financial standing will not be prejudiced in any respect by creating the settlement. It will evaluate P’s income and capital requirements, allowing a prudent and ample contingency margin, before determining whether the proposed arrangement accords with P’s best interests. The court may judge a...

This Practice Note sets out essential guidance for firms on unbundled legal advice services. Related guidance is available as follows: Practice Note on Unbundled advocacy and litigation services Overarching Practice Note on What to consider when offering unbundled services Practice Note: Separate business and unbundling legal services 2019 for situations involving a separate business When resources are stretched, running a matter without a lawyer and seeking legal input only when required helps a client manage costs and stick to a budget. Unbundling may make it possible for a client to obtain legal advice that would otherwise be beyond reach. Even limited involvement from a solicitor can improve prospects compared with a client handling everything alone. What are unbundled legal services? An unbundled service typically involves delivering discrete, limited-scope legal advice and assistance to a client acting in person. For...

ARCHIVED: This Practice Note is archived and is not maintained. In each section of this Practice Note, links are provided to the relevant provisions of EU and/or UK legislation, as applicable, and any significant divergence between the relevant EU and UK legislation is clearly identified. EU Market Abuse Regulation—background and purpose The Market Abuse Regulation (the EU Market Abuse Regulation) annulled and superseded the former Market Abuse Directive ( Directive 2003/6/ EC) ( OJ L 96/16) ( MAD) and its implementing legislation on 3 July 2016. The EU Market Abuse Regulation established a refreshed and bolstered EU market abuse framework, introducing a broader scope and more stringent sanctions. Outside of the UK, the Market Abuse Regulation was supplemented by Directive 2014/57/ EU on criminal sanctions for market abuse ( CSMAD). The UK used its powers to opt out of CSMAD, as it already has an...

At times, a beneficiary seeks to reclaim a particular asset. In such a scenario, tracing is the remedy of choice, as the claimant aims to demonstrate a proprietary entitlement to the item. A crucial distinction must be drawn between pursuing the very asset once owned and identifying a replacement property that now stands in for what was formerly held. A clear illustration is an attempt to prove title to a house purchased with the proceeds from selling a house that formed part of a trust. In the first situation, the claimant need only show that the property was theirs; in the second, the path is less direct, because equitable principles are engaged. Although the expression tracing is commonly used, and will be used here, it is often clearer to describe the former as ‘following’ and the latter as ‘tracing’. As a leading case...

ARCHIVED: This content was issued in 2016 and is no longer being updated. STOP PRESS: A major overhaul of the UK listing framework took effect on 29 July 2024, featuring the scrapping of the premium and standard listing segments and the introduction of a single listing category for equity shares of commercial companies. The commercial companies category is strongly disclosure-led and sits alongside other listing categories, including those for shell companies, secondary listing and closed ended investment funds. A new UK Listing Rules sourcebook took effect to deliver these reforms, and the earlier Listing Rules sourcebook was withdrawn. For more details and guidance, consult Practice Note: Reform of the UK listing regime—fundamentals......

The statutory framework for trusts in the British Virgin Islands ( BVI) comprises both the Trustee Ordinance (as amended) ( Cap 303, Laws of BVI) along with the Virgin Islands Special Trusts Act 2003 (as amended) (the VISTA Law) (copies of the legislation are also available via the further reading links to Spitz & Clarke Offshore Service in the related documents pod and also on the BVI FSC— Legislation web page). Trusts created under the VISTA Law ( VISTA Trusts) must generally observe specified formalities as prescribed and can incorporate various distinctive features enabled by the flexible and pioneering nature of the VISTA Law. Express application The VISTA Law is not of general application to all BVI law governed or administered trusts. To benefit from the unique opportunities it provides, the drafter of the trust instrument must insert an express clause confirming that the regime...

This Practice Note offers an overview of trusts in the British Virgin Islands ( BVI). For broader BVI background, see Practice Note: Private Client— British Virgin Islands— Q& A guide. The principal legislation is the Trustee Ordinance ( Cap 303, Law of BVI), as amended ( TO), and the Virgin Islands Special Trusts Act 2003, as amended ( VISTA Law). The texts are available via the further reading links to Spitz & Clarke Offshore Service in the related documents pod and on the BVI FSC— Legislation web page. Types of trusts The most frequently used BVI trusts include: discretionary trusts VISTA trusts life interest trusts fixed interest trusts Discretionary trusts A discretionary trust typically affords maximum flexibility and is the most commonly adopted and, in many cases, the most effective arrangement for both settlor and beneficiaries. Trustees are granted wide discretion regarding when distributions are made, in what amounts, and to which...

The framework governing trusts in the British Virgin Islands ( BVI) is set out in the Trustee Act (as amended) ( Cap 303, Laws of the BVI) together with the Virgin Islands Special Trusts Act 2003, as amended (the VISTA Law). Trusts formed under the VISTA Law ( VISTA Trusts) commonly hold shares, whether directly or through holding structures, in operating companies rather than purely passive investment vehicles, often trading in fields unfamiliar to the trustee and regularly located at a distance from the BVI. Addressing such demanding circumstances was the very reason the VISTA Law was designed and enacted, which in turn makes VISTA Trusts a highly effective tool within international wealth structuring. This Practice Note considers selected aspects of the management and administration of VISTA Trusts. Separation of trust and corporate governance The VISTA Law acknowledges that trustees are seldom natural...

This Practice Note sets out the considerations that apply on and after 6 April 2016 (the date on which contracting-out on a salary-related basis—also described as DB contracting-out—was abolished) when undertaking a ‘buy-out’ of the following contracted-out salary-related ( COSR) rights: guaranteed minimum pensions ( GMPs)—the benefits built up by members of COSR schemes as a result of contracting out between 6 April 1978 and 5 April 1997 Section 9(2B) rights (also called post-1997 COSR rights)—the benefits built up by members of COSR schemes as a result of contracting out between 6 April 1997 and 5 April 2016 The legislative requirements that apply differ according to whether the relevant COSR rights are GMPs or Section 9(2B) rights. For guidance on the considerations that applied before 6 April 2016 to the buy-out of COSR rights, see Practice Note: Buying out Section 9(2B) rights and GMPs before 6 April 2016 [...

This practice note concerns schemes that were contracted-out salary-related ( COSR) schemes before 6 April 2016 From 6 April 2016, salary-related contracting-out (often referred to as DB contracting-out) came to an end. Any schemes that had COSR status immediately beforehand automatically stopped being contracted-out with effect from that date. This practice note outlines the statutory requirements applying on and after 6 April 2016 to schemes that were COSR schemes before then. For background on the ending of DB contracting-out, see Practice Note: Abolition of DB contracting-out—an introduction [ Archived]. For a general explanation of contracting-out, see Practice Note: What does ‘contracting-out’ mean for pension lawyers? They therefore no longer hold contracted-out status. Legal framework for former COSR schemes The principal contracting-out requirements for former COSR schemes are chiefly contained in the following legislation: Part III of the Pension Schemes Act 1993 ( PSA 1993) the...

This Practice Note considers harbour orders sought by harbour authorities in England and at reserved trust ports in Wales; it does not address the power of the Marine Management Organisation ( MMO) to make harbour orders of its own motion. What are harbour revision, closure and empowerment orders and harbour reorganisation schemes? Under the Harbours Act 1964 ( HA 1964), a harbour means any natural or constructed harbour, and any port, haven, estuary, tidal or other river, or inland waterway navigated by sea‑going ships, including a dock and a wharf. In most UK harbours, the duty to improve, maintain or manage the harbour rests with statutory harbour authorities ( SHAs). SHAs derive their powers and obligations for a harbour from local Acts of Parliament (for example, for Poole Harbour, the Poole Harbour Act 1914) or from harbour orders made under the HA 1964. Each SHA is...