Legal Practice Notes

Criteria for eligibility for the Financial Assistance Scheme The Financial Assistance Scheme ( FAS) closed to notification and qualification of new pension schemes on 1 September 2016. Members already receiving, or holding a deferred right to receive, assistance payments from the FAS are not affected by this closure. For FAS payments to be made, separate yet connected conditions must be met for: the scheme its sponsoring employer(s) the individual members As a rule, underfunded defined benefit schemes that began winding up on or after 6 April 2005 should turn to the Pension Protection Fund ( PPF) to secure members’ promised benefits, rather than the FAS. However, the FAS can be relevant where a scheme entered winding up on or after 6 April 2005 but its sponsoring employer had become insolvent before that date. The eligibility requirements and the route into the FAS are...

Environmental insurance Environmental insurance is a means of transferring risk to indemnify the insured for losses that may arise from potential environmental liabilities. A variety of policies are available to address the different types of loss linked to such liabilities. For more on environmental insurance, see Practice Notes on: When it is needed Scope of cover Advantages and disadvantages Transactions Businesses Remediation and development projects Contractors and consultants Chemical sites Landfills Petrol stations Scope of environmental insurance Losses covered Environmental insurance solutions can be arranged to cover a broad range of losses stemming from an environmental liability. Typical insurable losses include: On-site and off-site remediation: investigation and remediation costs, reinstatement of damaged property or services, settlement payments, and related legal expenses where contamination is identified Third-party property damage: remediation and restoration costs arising from harm to...

Taking occupation before practical completion In most building contracts, the contractor has sole possession of the site and the works, and that position continues until practical completion of the works occurs (see Practice Note: What is practical completion?). At practical completion, exclusive possession of the site/works transfers back from the contractor to the employer. This is usually the case in practice unless the contract states otherwise through express terms (for example, terms dealing with sectional completion). However, the realities of construction and the commercial pressures on employers mean that, from time to time, an employer may decide it wishes to, for example, access, use, occupy or even sell a part or parts of the site/works before the whole of the works is finished or completed in full. A common rationale for doing so is to permit it (or a...

A B C D E F G H I J K L M N O P Q R S T U V W X Y Z Hard FM Facilities management ( FM) appointments are, in essence, commercial service contracting agreements. Hard FM refers to works tied to the upkeep and physical fabric of premises, for example landscaping, routine repairs, and mechanical and electrical systems maintenance. By contrast, Soft FM concerns in-building support functions such as cleaning, security, and helpdesk provision within a building. See subtopic: Facilities management for construction lawyers. Head contract This expression describes the overall agreement for the whole of the works and their delivery between the employer and the contractor, including circumstances where parts are let to sub-contractors by the contractor. It is commonly recognised as the head, or main, contract, clearly setting it apart from any...

W options These set out the provisions in NEC3 and NEC4 contracts that deal with dispute resolution. Under NEC3, one of two alternatives— W1 or W2—must be chosen. For NEC4, a choice must be made from three possibilities: W1, W2 or W3. For further details, see Practice Note: NEC contracts—dispute resolution. See also the X options, Y options and Z clauses......

Lenders and other financiers commonly obtain an assignment of the benefit of the suite of construction documents in respect of a development as an extra element of the security package supporting their loan to fund the project. See Practice Notes: Assignment in construction contracts and Legal and equitable assignment in construction contracts for further guidance and practical context. This Practice Note also examines the various approaches used for such an assignment and highlights some of the risks involved. For convenience in this note, all funders are called ‘banks’. Why does a bank wish to take an assignment? It should be noted that assigning the construction documents is only one of a number of security measures that a bank will hold. It will also probably register a charge against the employer itself and will also benefit from a suite of collateral warranties from the...

A B C D E F G H I J K L M N O P Q R S T U V W X Y Z ABI Model Form of Guarantee Bond A performance guarantee bond template issued by the Association of British Insurers ( ABI) and commonly applied to construction projects, though it is frequently amended. See Practice Note: Amendments to ABI Model Form of Guarantee Bond. Acceleration In construction law, acceleration is generally taken to mean adopting measures to increase the pace of the works so as to complete them earlier than would otherwise be the case. See Practice Note: Acceleration of construction works, Precedent: Acceleration Agreement and Clause: Acceleration clause. ACE See the Association for Consultancy and Engineering ( ACE) below. Activity schedule A schedule of activities the contractor anticipates carrying out in completing the works......

Concurrent delay This Practice Note examines the definition and significance of concurrent delay on construction projects, the contract provisions that address concurrent delay, and the contractor’s entitlement to an extension of time and/or loss and expense where concurrent delay arises. Concurrent delay describes a scenario on a construction project experiencing delay in which two or more independent events occur that, if each were considered in isolation, would have caused critical delay to the project. Commonly, one of the delaying events sits at the employer’s risk (often termed a ‘relevant event’), while the other is either the contractor’s risk or is neutral (that is, at neither the contractor’s nor the employer’s risk, such as adverse weather). These delays may happen exactly at the same time (although that is uncommon) or may overlap to some extent. Applying the usual ‘but for’ test of...

Where an agreement for lease contemplates building works, it is standard for the landlord to secure collateral warranties (or grant third party rights) for the tenant’s benefit. This Practice Note explains the drivers behind tenant requests for such warranties, identifies the usual warrantors, and sets out points for construction lawyers when settling warranty terms and the linked provisions within the agreement for lease... Why does the tenant require warranties? Post-completion defects are a familiar aspect of construction schemes. A significant number emerge within the defects liability period, during which the contractor is typically required under the building contract to make good any faults (see Practice Note: Defects liability period and rectification of defects). Yet other, often more material, issues can surface later—at a time when the contractor no longer has a contractual duty under the building contract to revisit the site to remedy them—and after the...

Agreement for lease—construction obligations, defects liability and collateral warranties Under an agreement for lease that includes construction duties, the landlord is bound to deliver a specified building (or part) to an agreed standard by a set date. However, it will typically accept responsibility for defects in the works only for a limited period following completion—usually up to the end of the defects liability period (see, for instance, the Defects Liability clauses in Precedent: Agreement for lease—developer landlord to carry out major works incorporating the Standard Commercial Property Conditions ( Third Edition)). As a result, the tenant will wish to keep track of the construction phase and obtain extra contractual protection, such as collateral warranties or third party rights, to safeguard its position if defects emerge after the landlord’s liability to the tenant has expired. For further detail on collateral warranties and third party rights in this...

The Financial Conduct Authority’s Collective Investment Schemes Sourcebook ( COLL) is a specialised sourcebook that sits within the FCA Handbook. COLL sets out the detailed framework that governs how authorised funds operate, and this Practice Note succinctly summarises its key provisions. What is COLL? The Collective Investment Schemes sourcebook ( COLL) is a specialised sourcebook within the Financial Conduct Authority ( FCA) Handbook. It defines the detailed parameters under which FCA-authorised funds function. COLL is supported by the COLL information guide ( COLLG), which is addressed in COLLG below as well. The rules in Chapters 2 to 8 of COLL constitute a significant component of the product regulation regime for investment companies with variable capital ( ICVC), authorised unit trust schemes ( AUT), authorised contractual schemes ( ACS) and related parties......

Entry clearance applications are now, in every instance, to be submitted online. For many routes, the digital application is accessible via the relevant visa tool on GOV. UK. There is also a web platform hosting forms for particular family member routes, including relatives of individuals exempt from UK immigration control, as well as for Armed Forces and assorted other routes. A small number of routes still require completion of Appendix forms. Most remaining paper-based forms relate to citizenship. Postal citizenship applications are compulsory for applicants in the Channel Islands or the Isle of Man (and, in some situations, a British Overseas Territory), but applicants elsewhere may use post if they prefer not to apply online. This page provides an A– Z list of the outstanding hard copy application forms for use in applications made outside the UK and, in some...

This Practice Note outlines the functions and obligations of the facility agent in a syndicated loan, identified in the Loan Market Association ( LMA) documentation simply as the ‘ Agent’, with reference to provisions contained in the LMA’s investment grade and leveraged facilities agreements. It also reviews the rights of the facility agent and the measures it may adopt to protect itself and exclude liability whilst carrying out its role. In addition, it considers the procedures for appointing a facility agent and the process for its resignation... What is a facility agent? A facility agent is a central party in a syndicated loan transaction. In essence, it represents the lenders under the facility agreement and functions as a ‘post box’ between the various participants. Its responsibilities are administrative, overseeing communication and the movement of funds between the lenders and the borrower. Given the...

This Practice Note examines non- UCITS retail schemes ( NURS), namely authorised collective investment schemes ( CIS) that are not undertakings for collective investment in transferable securities ( UCITS). It covers their investment scope, key investor information documents ( KIIDs), marketing, and NURS arranged as funds of alternative investment funds ( FAIFs) or property authorised investment funds ( PAIFs)... What is a NURS? Alongside UK-authorised UCITS, NURS represent another category of UK-authorised CIS. A NURS may be structured as an authorised unit trust ( AUT), an open-ended investment company ( OEIC), or an authorised contractual scheme ( ACS). For more on AUTs, OEICs and ACSs, see Practice Notes: OEIC authorisation and winding-up, Authorised unit trusts ( AUTs) and Taxation of authorised contractual schemes ( ACSs)—overview. As each of these vehicles is open-ended, a NURS is invariably an open-ended authorised fund. Other types of non- UCITS...

NOTE—to see whether notification thresholds in Germany and throughout the world are met, see further: Where to Notify. 1. Have there been any recent developments regarding the German merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Germany? Since the 11th Amendment to the Act against Restraints of Competition ( Gesetz gegen Wettbewerbsbeschränkungen) ( ARC) entered into force on 7 November 2023, there have been no material revisions to the German merger control framework. That amendment, among other measures, lowered the standard thresholds triggering a filing obligation (see further: Question 4). No fresh initiatives have been announced—still less any draft bill—heralding another reform. The Coalition Agreement of the current governing parties, which sets the programme through to the next regular federal election in autumn 2029, likewise does not anticipate a new overhaul. In...

Safeguarding confidential information sits at the heart of your client relationship, both as a legal obligation and a matter of professional conduct. That obligation does not lapse when the retainer ends and continues even after a client’s death. When deciding if you may act where confidentiality is engaged, weigh four core questions: what counts as material confidential information what constitutes an adverse interest what the common law recognises as effective safeguards what amounts to informed consent This Practice Note addresses material confidential information and adverse interests. For the remaining topics, consult Practice Notes: Informed consent—law firm confidentiality and Safeguards and information barriers. The duty of confidentiality— SRA requirements You must preserve the confidentiality of clients’ affairs unless: disclosure is required or permitted by law, or the client consents For wider guidance on the general duty and on how...

If a member is expected to live for less than one year (described as ‘serious ill‑health’), and certain requirements are met, a scheme administrator may commute any pension rights that member holds within the scheme and instead pay the whole benefit due under an arrangement as a lump sum. In statute this type of authorised member payment is termed a serious ill‑health lump sum. Conditions for payment of a serious ill-health lump sum Current conditions Under the Finance Act 2004 ( FA 2004), Sch 29, para 4, a scheme administrator can pay a serious ill‑health lump sum to a member only where the following conditions apply: Before payment, the administrator has received evidence from a registered medical practitioner confirming the member is expected to live for less than one year. A ‘registered medical practitioner’ means a person registered under the Medical Act 1983 or, if the...

Archived: This archived Practice note considers the definition of relevant person under section 809M of the Income Tax Act 2007 for the purposes of the remittance basis of taxation Abolition of the UK's existing tax regime for UK resident non- UK domiciled individuals On 29 July 2024, the Chancellor, Rachel Reeves, confirmed that from 6 April 2025 the government will proceed with scrapping the UK’s current rules for UK-resident, non- UK domiciled individuals (‘non-doms’) and introducing the new four-year foreign income and gains ( FIG) exemption first announced by the previous government at the March 2024 Budget. The four-year FIG exemption will be available to people who become UK resident after being non- UK resident in each of the preceding ten tax years. Eligible individuals will not be liable to UK tax on their overseas income or gains, or on income and gains arising in trusts they have...

The in-house function, within a fully aligned, value-creating setting, does far more than dispatching legal know‑how reactively to deal with colleagues’ discrete questions. Though that might sound self-evident, mapping the journey from a reactive service to a proactive, value-enhancing partner is not always straightforward. The path, its milestones and everyday behaviours for shifting from reactive to proactive are, in many settings, anything but clear. That ambiguity often persists. Collaboration with a company’s marketing team offers a revealing example. Marketers often see themselves as inventive, energetic, rapid in execution, ‘plugged-in’ and operating at the forefront of presentation and ideas. Without leaning on clichés, they may presume that lawyers do not necessarily bring comparable attributes to their craft. Back to first principles A legal team forms part of the assurance function. Stating this clearly helps embed both the cooperative and oversight dimensions when advising ‘front line’...

This Practice Note outlines the ‘not subject to a lower level of tax’ exemption from a charge within the controlled foreign company ( CFC) rules...