Legal Practice Notes

In an acquisition finance deal, the buyer and seller settle the acquisition documentation between themselves, with the lenders’ lawyers given an opportunity to review and comment. Often, the lenders’ interests mirror those of the buyer, so a strong negotiating position on the buyer’s side will usually benefit the lenders as well. This note highlights areas of particular interest for lenders’ lawyers in specific acquisition documents. More generally, they will wish to ensure that: the target companies and/or assets correspond to lenders’ expectations in terms of identity and value the acquisition contracts provide sufficient contractual protections to shield the target group from unforeseen financial liabilities the acquisition documents address any key issues arising from the disclosure letter and the due diligence process For an introductory overview of acquisition and leveraged finance, see Practice Note: Introductory guide to acquisition finance. For...

Many of the standard conditions precedent ( CPs) associated with a conventional syndicated loan facility will likewise be highly relevant to a real estate finance transaction. For further information on those CPs, please refer to Practice Note: Conditions precedent. In a real estate development finance arrangement, the borrower obtains funding not only to acquire the property but also to carry out the development itself. As a result, a large number of CPs used in real estate finance investment facility agreements will also govern development facilities, with additional CPs required to address the development aspects of the transaction. This Practice Note considers the real estate finance specific CPs that typically arise and apply in a real estate development finance transaction. For details on CPs in real estate finance investment facilities, see Practice Note: Real estate...

Coronavirus ( COVID-19) In response to the pandemic, the government introduced the Bounce Back Loan Scheme ( BBLS), the Coronavirus Business Interruption Loan Scheme ( CBILS) and the Coronavirus Large Business Interruption Loan Scheme ( CLBILS) to help SMEs and bigger companies secure funding. Each scheme limited when lenders could obtain personal security, allowing it only in specific situations and under defined conditions. Applications for these three schemes ceased on 31 March 2021 and they were succeeded by the Recovery Loan Scheme ( RLS), which began on 6 April 2021 to back UK businesses as they rebuild and expand post-pandemic. The RLS likewise sets parameters for taking security from individuals. For more information, see Practice Note: Coronavirus ( COVID-19)—implications for lending transactions [ ARCHIVED]— What are the implications for borrowers and lenders of the government and regulators’ response to coronavirus (...

This Practice Note outlines the usual features of a mezzanine facility and identifies the principal amendments required to convert a senior facilities agreement into a mezzanine facility agreement in an acquisition finance context. For a primer on acquisition and leveraged finance, see Practice Note: Introductory guide to acquisition finance, and for definitions of commonly used terms, see: Glossary of acquisition finance terms and jargon. For the role of mezzanine facilities in real estate finance, see Practice Note: Senior loans, mezzanine loans and intercreditor arrangements in real estate finance. What is mezzanine debt? The mezzanine facility is a layer of funding that sits behind the senior facilities in priority. It is sometimes deployed in leveraged finance transactions: to bridge any gap in the purchase price once the senior facilities and equity investment (and any other funding) are taken into account, and to reach lenders who...

This Practice Note outlines the principal issues to take into account when altering an existing facility agreement. It covers: typical drivers and rationales for changing a facility agreement key considerations when amending a facility agreement in the context of a bilateral or syndicated transaction matters to address where guarantees or security are in place ways to document an amendment, including whether to use an amendment letter, an amendment agreement, or an amendment and restatement agreement usual conditions precedent to effectiveness points concerning fees, costs and expenses This Practice Note does not address one-off waivers and consents. For further information on waivers and consents, see Practice Note: Waivers and consents. For material on amending security documents, see Practice Note: Amending security documents. For general contract law guidance on varying a contract, see Practice Note: Contract...

Exporters aiming to take their goods or services into overseas markets often face significant exposure as they pursue new business. The likelihood of non‑payment in such environments increases where there is elevated: commercial risk (ie failure to pay by an overseas buyer, the buyer’s insolvency, unilateral breach of contract, non‑performance of the asset, or non‑payment by off‑takers), and political risk (ie the risk that government action or political circumstances will adversely affect local business and/or international investment) For certain goods or services, or in particular markets, these risks can materially restrict the availability of commercial financiers; in the absence of Export Credit Agency ( ECA) support, many projects may never get off the ground. ECAs step into this gap to help mitigate the commercial and/or political risks inherent in dealing with an overseas business, providing a vital source of financial backing to...

This Practice Note explains the application of the Administration of Justice Act 1920 ( AJA 1920/the Act) to the registration and enforcement of foreign judgments from superior courts in specified states and territories. It sets out the obligation to register in the High Court of England and Wales (the English court), together with the conditions and procedure for registration. It also notes when the court may refuse registration, the effect of a registration order, and guidance on setting aside or staying such an order. Note: For enforcement, the relevant provisions are AJA 1920, ss 9–14; ss 1–8 have been repealed. For guidance on enforcing an English court judgment outside the jurisdiction, see Practice Note: Cross-border enforcement of English...

ARCHIVED This archived Practice Note is no longer maintained and is provided solely for background reference. Moreover, certain links may not take you to the provisions as they stood on the date this Practice Note’s guidance was published. Note: The information here is applicable only where a writ of fieri facias or a warrant of control was issued before 6 April 2014 and enforcement under that writ or warrant had reached one of these points by that date: goods had already been distrained; goods had already been executed against; goods had already been made subject to a walking possession agreement. In such circumstances, execution of that writ or warrant proceeds under the pre‑6 April 2014 provisions. However, if you do not meet the above conditions, any enforcement by taking control of the debtor’s goods falls under the new regime in the...

This Practice Note gives a concise overview of the matters to address at the outset of a dispute. Begin by identifying whether there is a dispute resolution procedure or clause, and evaluate the extent to which it governs the dispute in hand. Where it is engaged, consider: the procedural and substantive requirements of that clause the governing law that applies to the clause which courts (if indeed it is a court) hold jurisdiction over the dispute For further detail on these points, see Practice Note: Dispute resolution clauses—what and why. For general guidance on alternative dispute resolution ( ADR) and the various forms of dispute resolution clauses, see: ADR and dispute resolution clauses—overview. Pre-action obligations A pre-action protocol sets out the steps that must be taken, for any claim within its scope, before court proceedings are issued. For information on the specific...

This Practice Note reviews the Hague Convention on Choice of Court Agreements, which governs both jurisdiction and the recognition and enforcement of judgments. It outlines the scope of the Hague Convention on Choice of Court Agreements and the need for an international case anchored by an exclusive choice of court agreement. It also examines issues lying outside the Convention’s reach, whether by specific exclusions within the text or through declarations made by contracting states. The Practice Note considers how the Hague Convention on Choice of Court Agreements applies in the UK. An explanatory report on the Hague Convention on Choice of Court Agreements by Trevor Hartley and Masato Dogauchi supplies detailed commentary on each article. When did the Convention come into force? The Hague Convention on Choice of Court Agreements was concluded on 30 June 2005 and was first ratified by Mexico, followed by the EU. In...

Practice Note This Practice Note sets out guidance on the formalities to address when preparing witness statements in civil proceedings, and also offers direction on statements of truth and managing difficult witnesses. You should also consult Practice Note: Witness statements—substantive content, which covers the substantive elements. This Practice Note explains how the relevant CPR provisions should be interpreted and applied. Depending on the court in which your case is being heard, you may need to take account of further requirements—see: Court specific guidance below. Where a witness statement is intended for use at trial in the Business and Property Courts and falls within CPR PD 57AC, refer for additional guidance to Practice Note: Trial witness statements in the Business and Property Courts under CPR PD 57AC......

This Practice Note explains how to interpret and apply the relevant CPR provisions. You should also look to additional material contained in the court guides—see Court specific guidance below. Preparation of expert report This Practice Note proceeds on the footing that permission has been granted to adduce expert evidence, and that a single joint expert will not prepare or give that evidence. For help on securing permission to adduce expert evidence, see Practice Note: Applying for permission to adduce expert evidence, and for guidance on Single joint experts. Expert witnesses and those instructing them are expected to have regard to: all applicable CPR Rules and Practice Directions, particularly CPR 35 and CPR PD 35 the Guidance for the instruction of experts in civil claims (the Guidance) Practice Direction Pre- Action Conduct and Protocols, para 7 For the expert’s duties, see Practice Note: Duties of an...

ARCHIVED: This Practice Note is drawn from provisions revoked with effect from 1 April 2013, and is retained solely for historical context. Fixed costs—money or goods In particular circumstances, the court may require the unsuccessful party to pay only fixed sums in relation to the successful party’s solicitors’ costs. Those costs consist of: fixed commencement costs other solicitors’ charges The applicable rules on fixed costs are contained in Part 45......

Right to ‘disconnect’ This Practice Note explores the concept of the right to ‘disconnect’ (or to ‘switch off’), which means workers are not required to carry out work-related activities beyond their normal contracted hours, nor to respond during those times. The nature and extent of any right to disconnect varies across jurisdictions and, although it could relate to any form of work task, it most commonly concerns staff receiving electronic communications (for example, emails and telephone calls) outside their usual working hours. In the last decade, the share of workers performing their duties flexibly and remotely has grown substantially, particularly after the Covid pandemic, which led many people to move to remote working for the first time. Although this flexibility has benefited many, the fading line between workplace and home has made it harder for individuals to properly ‘switch off’ from their work. The Acas guide on...

Introduction This Practice Note serves as a negotiation aide for IT contracts, spanning IT services (from helpdesk support through to full-scale outsourcing), software licensing and/or hardware procurement. It summarises baseline positions across roughly thirty frequently negotiated points, and proposes workable compromises and focal considerations shaped by the contract’s scope, each party’s bargaining power, and whether you act for the customer or the supplier. The discussion is intentionally high level, designed to prompt assessment of what is necessary in the circumstances of a specific transaction. Where appropriate, it signposts related Practice Notes for deeper detail. It applies solely to business-to-business dealings. For a broader look at negotiation issues in services agreements generally, rather than IT-specific arrangements, see Practice Note: Ireland— Negotiation guide: services...

Introduction This Practice Note serves as a negotiation guide for services agreements. It highlights core positions on 25 commonly disputed points, with suggested compromises and key considerations shaped by contract scope, relative bargaining power, and whether you represent the customer or the supplier. It offers a high-level overview to prompt analysis of what is needed for a particular deal and, where apt, signposts other Practice Notes for further detail. It is relevant only to business to business transactions. It does not address these issues for IT services contracts, although many points will be similarly applicable. Contents The following topics are covered: General service obligations Quality and performance warranties (deliverables and related goods) Adherence to policies Service levels and service credits Milestones Acceptance testing Supplier reliefs Payment terms Intellectual property ( IP) ownership and licensing ...

A facility agreement sets out the conditions under which a Lender provides finance and is essential for all loan transactions. This Practice Note offers an entry-level overview of negotiating a facility agreement for those unfamiliar with lending transactions. The aims of the parties A table of useful precedents Guidance on the structure of a facility agreement Key points to prioritise during negotiation Links to more detailed materials Common pitfalls that may arise See also Practice Note: Introductory guide to lending, which explains the role of the facility agreement in the context of a loan transaction. Aims of the Parties Lender’s aims The lender ( Lender) aims to safeguard its investment during facility agreement negotiations, ensuring its capital is repaid, interest is paid on time, and fees are settled when due......

Regulating, Consenting and Incentivising the Energy Transition For comprehensive analysis of how the net zero energy transition is regulated, consented and incentivised under the laws of England and Wales, see also Collinson and Hockman on Energy Law: Regulating, Consenting and Incentivising the Energy Transition. The textbook contains thorough discussion of matters addressed in this Practice Note. This tracker summarises major developments and expected forthcoming actions relating to low carbon hydrogen in Great Britain ( GB) since the Ten Point Plan for a Green Industrial Revolution, published in November 2020. It sets out policy and legislative moves led by the Department for Energy Security and Net Zero ( DESNZ) and its predecessor, the Department for Business, Energy and Industrial Strategy ( BEIS), alongside relevant measures from the Welsh and Scottish governments where hydrogen is a devolved matter, plus pertinent updates from Ofgem. The tracker spans a suite of low...

This Practice Note examines how defects are addressed under the FIDIC Red, Yellow and Silver Books (pre‑2017 editions). For defects in the 2017 suite, see Practice Note: FIDIC Contracts 2017—defects. For wider commentary on defects, see Practice Note: Defects claims in construction. What is a defect under FIDIC contracts? As with many standard form contracts, FIDIC does not define ‘defect’. In practice, a ‘defect’ is generally understood to mean that part of the Works or materials fails to comply with the Contract requirements (see Practice Note: Defects claims in construction — What is a defect?). Under clause 4.1, the Contractor must design, execute and complete the Works in accordance with the Contract, and must remedy any defects in the Works. Clause 11 requires the Contractor to ensure the Works are in the condition required by the Contract by expiry of the relevant Defects...

This Practice Note This Practice Note sets out guidance on completing a landlord’s warning notice and a tenant’s declaration for the purpose of contracting out of the Landlord and Tenant Act 1954 ( LTA 1954)—namely excluding sections 24–28 on a new business tenancy so the tenant does not obtain statutory security of tenure. Detailed guidance on contracting out of the LTA 1954, including: leases to which the LTA 1954 applies when and how a landlord’s notice should be served when and how a tenant’s declaration or statutory declaration should be made can be found in Practice Note: Contracting out of the Landlord and Tenant Act 1954—procedures, timing and pitfalls and Contracting out of the Landlord and Tenant Act 1954—procedure for a new lease—checklist; both should be consulted before using this guide. This Practice Note proceeds on the basis of a basic...