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Introduction to statutory interpretation The aim of statutory interpretation is to determine the legal meaning of a statute, that is, the sense that expresses the legislator’s intention. The clearest guide to that intention is the statutory wording itself, read in its context and with its overall purpose in mind, and its broader legislative setting. Courts should seek to fulfil the purpose of legislation by construing its language, so far as they can, in the manner that most effectively serves that purpose. Put differently, the courts’ default method is purposive, and every enactment is to be construed with that end in view. There is a starting presumption that the grammatical and ordinary sense of an enactment reflects the meaning intended by the legislator. Where an enactment reasonably bears only a single meaning, and no other interpretative tools or
This Practice Note addresses identifying a fiduciary, fiduciary duties and obligations, the no conflict rule, the no profit rule, a fiduciary's duty of confidence, and the remedies available for breach of fiduciary duty. Who is a fiduciary? There is no definitive catalogue of relationships that give rise to fiduciary obligations at common law in every situation universally. Certain relationships are inherently fiduciary, eg trustee and beneficiary, solicitor and client, principal and agent, business partner and co-partners, together with mortgagor and mortgagee. The obligations of some fiduciaries have been set out in statute; for instance, trustees owe a statutory duty of skill and care under section 1 of the Trustee Act 2000 (TrA 2000), and directors' relationships with their companies are addressed in the Companies Act 2006 too. For guidance on directors' fiduciary duties, see Practice Note: of directors for further detailed
Definition of ADR Alternative dispute resolution (ADR) is defined in the CPR Glossary as a collective label for methods of settling disputes other than through the usual trial process. Some courts adopt the term ‘negotiated dispute resolution’ (NDR) to describe resolution by alternative means; for ease, this Practice Note uses ADR. For guidance on how ADR is addressed in the various court guides, see Practice Note: ADR and NDR in the court guides. In essence, ADR is a means of resolving a dispute outside the court system. It typically involves a neutral third party who either helps the parties reach a negotiated outcome, or issues a determination of the dispute that is legally binding. A binding result can follow where the agreement to refer the dispute to ADR so provides. There are multiple forms of ADR processes. For an outline of the different types and their
In brief The British constitution is uncodified, meaning it does not spring from a single constitutional document or code. It draws on a wide range of written and unwritten sources. Alongside the principal written sources of law in England and Wales—legislation (which has also introduced international and human rights principles into our constitution) and the common law—the constitution also rests on two further unwritten bases within this system: the prerogative, and non-legal constitutional conventions. In addition, on one view the basic or prevailing principle of our constitution, Parliamentary sovereignty, is ultimately grounded in political fact rather than in law. Legislation Legislation is the foremost source of constitutional law. Acts of Parliament may set out detailed constitutional rules, or even pass authority to create them to ministers or to others. Under the doctrine of Parliamentary sovereignty, legislation is traditionally regarded as taking precedence over any other form or kind of
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CASE HUB ARCHIVED – this archive sets out the position as at the decision dated 29 March 2018; it is no longer maintained. See further, timeline and commentary. Case facts Outline CMA Article 101 TFEU/ Chapter I investigation into two cartels in the furniture sector, involving market sharing, price-fixing, bid-rigging and the disclosure of commercially sensitive information (case CE/9882-16). Latest developments On 29 March 2018, the CMA delivered its infringement decision. The following penalties were imposed: CPL – £2,816,514 Fuel Express – £627,867 Both penalties include reductions under the CMA’s settlement procedure. Parties CPL Distribution Limited and CPL Industries Holdings Limited (together, CPL), the largest coal merchant in the UK. Fuel Express ......
Sections 242 and 243 of the Insolvency Act 1986 ( IA 1986) In Scotland, these provisions regulate the two principal forms of antecedent transaction that a company may undertake. They do not apply to individuals or to companies registered in England and Wales; for the position in England, refer to the Practice Notes on transactions at an undervalue under section 238 and on preferences under section 239 of the Insolvency Act 1986. For Scottish individual/personal debtors, consult the Practice Note on gratuitous alienations by individual debtors. For a glossary of frequently used Scottish insolvency terminology, see Practice Note: Glossary of Scottish insolvency words and expressions. Unfair preferences What constitutes an unfair preference? An unfair preference is any transaction entered into by a company, whether before or after 1 April 1986, that has the effect of giving one creditor priority over the general body of creditors ( IA 1986, s...
This Practice Note examines how pivotal expert testimony and credibility are at trial, and therefore the weight the court may ascribe to expert material. It reviews why a court might prefer one expert’s opinion to another’s, when the court will choose between expert evidence and its own evaluation, what follows if an expert is neither called nor cross-examined, including the weight of unchallenged evidence, and offers practical guidance for giving expert evidence. Expert witnesses, and those instructing them, should have regard to: relevant CPR rules and Practice Directions the Guidance for the instruction of experts in civil claims (the Guidance). On 1 December 2014, the Guidance replaced the ‘ Protocol for the Instruction of Experts to give Evidence in Civil Claims’ formerly annexed to CPR PD 35 Practice Direction Pre- Action Conduct and Protocols, para 7 court-specific guidance found in court...
ARCHIVED: This archived Practice Note is preserved for historical interest and to give practitioners a concise snapshot of developments in case law during 2018. It tracked extradition appeal decisions by month across 2018. For details of leading cases from 2017, see Practice Note: Extradition appeals tracker—2017 decisions [ Archived]. If you know the date of the judgment you need, use the list below or the links on the left-hand side to move straight to the relevant table. Alternatively, search this Practice Note with [ CTL]+[ F] for the case name, citation or a relevant search term. Cases by month: January 2018 February 2018 March 2018 April 2018 May 2018 June 2018 July 2018 August 2018 September 2018 October 2018 November 2018 December 2018 December 2018 Case name Abstract/ Summary Search terms Scerbatchi v First District Court of Bucharest, Romania [2018] EWHC 3612 ( Admin), [2019] All ER ( D) 79 ( Jan) —...
This is a glossary of common words and expressions used in Scottish insolvency law with the nearest England and Wales insolvency law equivalent (where relevant) Absolute insolvency Meaning: When a person’s liabilities are greater than the overall worth of their assets. Nearest English equivalent: Balance sheet insolvency. Accountant in Bankruptcy ( Ai B) Meaning: A Scottish Government agency overseeing the regulation of personal bankruptcy (sequestration and Protected Trust Deeds) in Scotland, and able to serve as trustee in sequestrations where no insolvency practitioner is appointed. It also maintains records of corporate insolvencies in Scotland (receivership and liquidations only) but does not perform the role of Official Receiver. See Practice Note: Scotland: the Accountant in Bankruptcy. Nearest English equivalent: N/ A. Accountant of Court Meaning: A court-appointed officer within Scottish Courts and Tribunals who administers funds consigned to the Accountant of Court pursuant to a Court of Session...
Below is a summary of completed national references to the Court of Justice relating to how the EU Merger Regulation is interpreted since January 2013. For live national references before the Court of Justice, consult Court of Justice—ongoing national references. 2018 Case C-633/16, Ernst & Young Origin: Danish court Clarifies the scope of the EU Merger Regulation’s standstill duty ( Article 7) as it applies to the merger at issue specifically......
Introduction to flood risk The UK carries a legacy of building in places vulnerable to flooding from rivers, surface run-off and groundwater. Ongoing expansion into rural and low-lying districts has resulted in around six million homes and properties being at risk of inundation today. This stems in particular from exposure to riverine, coastal and surface-water sources and supports a policy focus on risk-led spatial planning. Assessing flood risk is essential as property, legal and financial markets grow more sensitive to flood exposure and the rising costs of flood damage over time. Because flood risk management is now central to all new schemes and to property conveyancing, a variety of products and assessments are widely available in the market place offering differing scope and depth—see Practice Notes: Flood insurance and Flooding—flood searches. History of planning policy on flood risk Planning Policy Guidance 25:...
ARCHIVED: This Practice Note is archived, not maintained, and offered for background reference only. In addition, certain links may no longer point to the provisions as they stood when the guidance in this Practice Note was issued. For details of earlier and/or later amendments to the CPR, see: CPR updates—overview and Procedure Rule Committee minutes—overview. This Practice Note outlines the amendments to Practice Directions contained in the 94th Making Document dated 30 January 2018, which took effect on Wednesday 7 February 2018. The following Practice Directions are amended: Practice Direction 8A— Alternative Procedure for Claims Practice Direction 59— Circuit Commercial Court Practice Direction 60— Technology and Construction Court Practice Direction 66— Crown Proceedings Practice Direction— Civil Recovery Proceedings Practice Direction— Business and Property Courts Practice Direction 8A— Alternative Procedure for...
Effects of flooding on underlying assets Flood events raise a range of considerations for banking and finance deals. This Practice Note flags the following areas: individual risks planning policy availability of insurance borrower default It also outlines how a lender may reduce exposure to these risks. Individual risks Floodwater can inflict serious harm on people, property and businesses. It may influence whether someone chooses to purchase or lease a home, and it can impact the valuation of real estate. In ‘ Deep Water Horizon’, 2018, the Royal Institution of Chartered Surveyors ( RICS) considers the rising incidence of floods and how the surveying profession might respond and manage the issue. The price of residential or commercial premises can fall owing to flood risk, not only due to potential physical damage but also because of the expense of flood insurance. Flooding also bears upon liquidity, market perception and...
ARCHIVED: This Practice Note is archived and no longer maintained. For the 2019 tracker, refer to Practice Note: Investment treaty arbitration—2019—key arbitral awards and decisions tracker [ Archived]. This Practice Note records details of notable awards and determinations issued by tribunals in investment treaty arbitration matters, chiefly those run by the International Centre for the Settlement of Investment Disputes ( ICSID). It also includes pertinent awards and decisions from proceedings under the United Nations Commission on International Trade Law ( UNCITRAL) Arbitration Rules and those overseen by other arbitral bodies, including the Arbitration Institute of the Stockholm Chamber of Commerce ( SCC), the Permanent Court of Arbitration ( PCA) and the International Court of Arbitration of the International Chamber of Commerce ( ICC). Although investment treaty arbitration has no recognised doctrine of precedent, earlier rulings are frequently invoked by parties and considered by arbitral tribunals in their...
Contractor’s obligations—commencement, progress and completion in the 2017 editions of the FIDIC contracts This Practice Note examines the Contractor’s duties on starting, advancing and finishing the Works under the 2017 FIDIC forms ( Red, Yellow and Silver Books). For a look at the corresponding time-related obligations in the 1999 editions of the Red, Yellow and Silver Books and in the Pink and Gold Books, see Practice Note: FIDIC contracts (pre-2017 editions)—time, and for a comparison of FIDIC time provisions with the JCT and NEC contracts, see Practice Note: Comparison between JCT, NEC and FIDIC time and money events. Completing the Works within the agreed timescale is a primary concern on any construction project. In relation to time, the Contractor has two separate obligations: to complete the Works (and any Section, if applicable) within the Time for Completion under clause 8.2; and to proceed with the Works with due...
Flooding—issues in corporate (private M& A) transactions Introduction Flood-related considerations can emerge in private company merger and acquisition ( M& A) deals that involve acquiring land. It is prudent to determine at an early stage whether flooding is relevant and, if so, to appoint suitable environmental and hydrology experts to identify, evaluate, assess and quantify the attendant risks. Those risks should be expressly allocated and controlled in the deal documentation, ensuring the client clearly grasps both their scope and magnitude, together with the possible effect on valuation, liabilities and activities after completion. Potential risks for buyers Share and asset purchase Flood matters may affect whether the deal proceeds as a share purchase or an asset purchase. On a share purchase, the buyer inherits all liabilities (including environmental or regulatory) of the target company. Examples of liabilities that might arise include: Regulatory...
There are many routes by which disputes may surface in a franchise setting, and these risks can be reduced by the terms you place in the franchise agreement and the way it is properly monitored. It is crucial that the agreement is not treated as a file to be tucked away and ignored until difficulties arise. Consistent oversight strengthens that mitigation. This Practice Note sets out several core provisions in franchise agreements, and within the wider franchise framework, that help to minimise the chance of conflict between franchisor and franchisee. Do not let it sit in a cupboard until issues appear. Misrepresentation A principal focus of the franchise agreement is to limit misrepresentation claims against the franchisor. Franchisees often cite being misled into purchasing the franchise as a justification for seeking early termination. The agreement combats this contention through a number of important...
Background This Practice Note sets out the main legislation, organisations and legal principles to bear in mind when planning, maintaining and dismantling flood defences. It does not explore environmental permitting or planning permission in depth. For permitting detail, see Practice Notes: Environmental Permitting—flood risk activities and Flooding—flood risk and development. What is a flood defence? A flood defence is any asset or feature intended, built or kept to manage flood risk by controlling, hindering or diverting the passage of water. Examples include: embankments flood walls sluices culverts barriers flood storage reservoirs artificial channels Flood defences can be temporary or permanent and may sit within a broader suite of flood risk management infrastructure. Key flood defence law Key legislation relevant to flood defences includes: Coast Protection Act 1949 — grants coast protection authorities general powers to carry out coast...
CASE HUB NOTE—appeal lodged before the General Court in Cases T- 671/19 and C- 371/17 ARCHIVED – this archived case hub sets out the position at the date of the decision of 18 July 2019 and is no longer maintained. See further timeline, commentary and related cases. Case facts Outline European Commission Article 102 TFEU investigations into Qualcomm, examining alleged predatory pricing in relation to baseband chipsets ( Case AT.39711). Latest development On 18 July 2019, the Commission adopted an infringement decision against Qualcomm, concluding it abused a dominant position by engaging in predatory pricing, selling baseband chipsets below cost to two key customers with the aim of driving a competitor ( Icera) out of the market. The Commission imposed a €242m fine on Qualcomm. Parties Qualcomm, a US-based company headquartered in San Diego ( California), designs and markets wireless...
What are growth shares? Growth shares are ordinary shares that only participate in a company’s capital value once a defined value hurdle is met. That hurdle may equal the company’s market value at the subscription date, but more often is set at a premium to the initial equity value. After the hurdle is cleared, growth shares can participate on any chosen basis—frequently ranking pari passu with other ordinary shares on value created over the hurdle—and may include terms that affect their initial valuation, such as: catch-up provisions ratchets similar features Returns on growth shares can be capped if desired, although many companies avoid a cap to preserve management’s incentive. For further information, see Practice Note: Growth shares (value shares). Why issue growth shares? The primary aim is to drive participants to create future value while ring-fencing current value for existing...
ARCHIVED: What is the proposed goods mortgage? On 14 May 2018, HM Treasury ( HMT) released its conclusions after reviewing responses to its 22 September 2017 consultation on reforming the Bills of Sale Acts. In light of the concerns identified, the small and shrinking market, and wider work on high‑cost credit, the government confirmed it does not intend to bring forward legislation at this time. For further details, see News: Goods Mortgages Bill: HM Treasury’s response to consultation— LNB News 14/05/2018 28. Accordingly, this Practice Note is retained for background information only. On 23 November 2017, the Law Commission published its report on the Goods Mortgages Bill, containing the final version of the Bill together with its recommendations. Jacqueline Cook, a member of the Lexis®PSL Banking & Finance consulting editorial board and senior professional support lawyer in the finance practice at Stephenson Harwood LLP, London, sets out an...
Income sources for a storage scheme hinge on the relevant electricity market, the technology deployed, the size of the project and whether it runs behind the meter to meet a specific site’s needs or is connected to the grid. Storage can generally extract value through some or all of the following: supplying grid services (frequency response, Capacity Market income, demand-side response) market price arbitrage smoothing generation output and avoiding imbalance charges in a hybrid model where an underlying (typically intermittent) electricity generation plant is co-located with a storage unit These income streams are explained in more detail below. All such revenue forms are described in further detail below. More detail is provided below. Investors usually want the flexibility to stack (i.e. combine) revenues, perhaps relying on different sources at different times of day or year, whilst debt financiers will look for a longer-term contracted base revenue stream to...
It is essential that parties adhere to the proper process when advancing claims under FIDIC standard contracts. Failure to do so can have serious repercussions, potentially resulting in the claim being time-barred or the claimant’s entitlement being curtailed or reduced. This Practice Note reviews the steps for claims pursued by either Contractor or Employer under the 2017 FIDIC Red, Yellow and Silver Books, with particular attention to the granular procedure prescribed in clause 20.2. See also Flowcharts: Claims under the FIDIC Red and Yellow Books 2017 (clause 20.2), and Claims under the FIDIC Silver Book 2017 (clause 20.2). In the 2017 forms, Employer claims are handled identically to Contractor claims—whereas, in the 1999 editions, Employer claims were governed by their own, comparatively less stringent, framework under a distinct procedural regime then. For commentary on claims under the 1999 Red, Yellow and Silver Books, as well as the Pink and Gold...
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When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
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