Substantive Law

This practice note explains the elements needed to establish adverse possession: factual possession and intention to possess. It also links to two practice notes on the procedure for claiming title to land by adverse possession: Adverse possession and the Land Registration Act 2002. This explains the regime for adverse possession in relation to registered land under the Land Registration Act 2002 (LRA 2002), which came into force on 13 October 2003. Adverse possession before the Land Registration Act 2002. This explains the regime for adverse possession as it used to apply to both registered and unregistered land, and which will continue to apply to unregistered land.   The law on adverse possession as it stood before the LRA 2002, continues to apply to registered land where the possession relied upon is for a period of at least 12 years ending before 13 October 2003.

This note addresses the role of alternative dispute resolution (ADR) in the context of the public sector and judicial review proceedings, and the relationship between ADR and the government's Dispute Resolution Commitment (DRC).

A practice note on the material changes to the Insolvency Rules 1986 (SI 1986/1925), mainly set out in Part 4, relating to winding up or compulsory liquidation of companies, that will be implemented by the Insolvency (Amendment) Rules 2010 (SI 2010/686) with effect from 6 April 2010.

The term 'commercial fraud’ covers a wide range of activities that may give rise to various causes of action. This note introduces and considers some practical examples of commercial fraud and examines some of the advantages and disadvantages of pleading fraud.

This Practice note provides an overview of the money laundering regime that applies to lawyers pursuant to the Money Laundering Regulations 2007 (2007 Regulations). The 2007 Regulations came into force on 15 December 2007 and replace the Money Laundering Regulations 2003 (2003 Regulations). They bring the 2005 Directive on money laundering into effect in the UK. The 2007 Regulations introduce new requirements and vary requirements that were in the 2003 Regulations. In particular, the 2007 Regulations require that: The lawyer is able to identify the beneficial owner of client trusts, companies and partnerships. The lawyer applies customer due diligence measures and monitors client activities according to a risk-based approach, applying less stringent procedures for low risk situations and more stringent procedures in higher risk situations. Training for staff is both regular and covers terrorist financing issues. Lawyers are also to have regard to the Law Society's anti-money laundering practice note published on 6 October 2011, and the Solicitors Regulation Authority's warning cards on money laundering (April 2009), property fraud (April 2009) and bogus law firms and identity theft (March 2012).   Property lawyers should also take account of the joint Land Registry and Law Society practice note on property and registration fraud (September 2010), and the Law Society's note on mortgage fraud (October 2011).

A note outlining the law on liability limitation agreements for auditors under the Companies Act 2006 (CA 2006). For a link to the CA 2006, see Companies Act 2006: publication of final text. For general background to the CA 2006, see Practice note, Companies Act 2006: materials. Chapter 6 of Part 16 (auditors' liability) came into force on 6 April 2008.

A note which considers: On whom should a break notice be served. The best approach to serving a notice if there is uncertainty about the correct recipient. In what circumstances notices should be served on managing agents.

This note considers how criminal liability for offences under the Bribery Act 2010 may attach to companies.

This note looks at facilitation payments, examining in particular what they are, why the lack of an exemption in the Bribery Act has been controversial, how the SFO plans to enforce the Bribery Act in relation to them and what can be done to prevent them being made. Information is also given on the position the OECD and other countries have taken towards facilitation payments.

In this note, Christine O'Neill, partner, and Paul Marshall, associate, of Brodies LLP consider the bribery and corruption self-reporting initiative in Scotland. This initiative was introduced on 1 July 2011, when the Bribery Act 2010 came into force, and is run by the Serious and Organised Crime Division (SOCD) of the Crown Office and Procurator Fiscal Service (COPFS).

A note on the tort of misfeasance in public office and the correct test for establishing the tort.

A practice note on the procedures introduced by the Regulatory Reform (Business Tenancies) (England and Wales) Order 2003 in relation to the termination of business tenancies without renewal. This practice note explains the procedures to be used where either the landlord or the tenant wishes to initiate the termination of a lease without the grant of a new lease. The Order came into force on 1 June 2004. For information on the procedures relating to the renewal of business tenancies, see Practice note, Business tenancies: procedures for renewal.

A note outlining the effect of the Landlord and Tenant 1927 on a tenant's covenant not to change use without the consent of the landlord.

This note looks at the right to claim interest in construction disputes in adjudication, arbitration and litigation. It considers the right at common law, under the terms of a contract or as an implied term under the Late Payment of Commercial Debts (Interest) Act 1998. The note also looks at interest claims in common construction disputes, such as claims for loss and expense, delay and disruption, and defects.

An outline of the requirements for claims in negligence considering the tort of negligence and actions for breach of a duty of care in contract. This note addresses issues such as causation, foreseeability, pure economic loss, contributory negligence and mitigation.

The civil wrong of bribery is concerned with payments made to agents without their principals' knowledge or consent. This note considers the elements of the cause of action of bribery, the implications of a payment being classified as a bribe, the relationship with fiduciary duties, defences and remedies. It also considers the situation where it is the agent who is doing the bribing. It is part of a series of practice notes examining different aspects of commercial fraud.

A tracker outlining the key stages in the development of a Common European Sales Law for consumers and businesses, including responses from UK bodies. The content of this tracker has been primarily based on PLC EU's legislation tracker, Common European Sales Law for consumers and businesses.

A table that shows when each section of the Companies Act 2006 (2006 Act) came into force. To check when a section of the Companies Act 1985 (1985 Act) was repealed by the 2006 Act, see Practice note, Companies Act 1985: When was it repealed?. For a table showing the origin of the provisions of the 2006 Act, principally by reference to sections of the 1985 Act, see Companies Act 2006: Table of origins. For background information and materials on the 2006 Act, see Practice note, Companies Act 2006: materials.

A note on what is a reasonable delay in a landlord giving consent to a tenant's alterations.

This tracker sets out links to key responses to the Ministry of Justice's (MoJ) May 2012 consultation paper on deferred prosecution agreements (DPAs).

This practice note summarises: The specific procedural rues in CPR 81 which relate to certain forms of contempt of court. Guidance from the case law in relation to those forms of contempt.

An outline of the ways in which contractual rights may be transferred to third parties by means of assignment, and the rule against assigning the burden, or obligations, of a contract.

A note outlining the rules governing the capacity of an organisation or individual to contract.

An outline of the classification of contract terms as conditions, warranties and intermediate or innominate terms.

A note considering the use of entire agreement clauses to prevent statements or representations that are not set out in a written agreement from having contractual force. It also considers the use of such clauses to restrict liability for claims based on misrepresentation

A note outlining the use of force majeure clauses.

A note outlining the rules governing the doctrine of frustration.

A note outlining the rules that may make a contract void or unenforceable, on grounds such as illegality or public policy, or voidable for duress or undue influence.

An outline of the way in which contractual rights and obligations may be transferred to third parties by means of novation.

A practice note explaining when and how the court will rectify a document or use construction to correct a mistake and reflect the terms agreed.

An outline of the way in which performance of contractual obligations may be transferred to a third party by means of a subcontract.

A note on the law of contributory negligence and contribution. It sets out the general principles, the types of claim in which contributory negligence can be pleaded, and the requirements for a claim for contribution under the Civil Liability (Contribution) Act 1978.

A note discussing the court procedure under CPR 55 for obtaining possession of property occupied for residential purposes. The note looks at: Common types of claim where this procedure should be followed. Protection from eviction. The standard procedure under CPR 55. The accelerated procedure under CPR 55. Enforcing a possession order.

This is a practice note on the recognition of restructuring and insolvency proceedings across different jurisdictions. It discusses why such recognition may be crucial to the success of formal corporate restructuring and insolvency processes (such as schemes of arrangement, CVAs and administrations). It also details the principal considerations when seeking recognition and provides an overview of the main legal regimes governing the recognition of UK insolvency proceedings abroad, and the recognition of foreign proceedings in the UK.

A note discussing the deadline for making an interim rent application.

A practical guide to the substantive law relating to decision-making by public bodies.

A note outlining the changes to the law on derivative claims and proceedings by members made by the Companies Act 2006 (2006 Act). For general background to the 2006 Act, see Practice note, Companies Act 2006: materials. Part 11 (derivative claims and proceedings by members) came into force on 1 October 2007.

A note outlining the changes to the law on directors' duties under the Companies Act 2006 (2006 Act). For a link to the 2006 Act, see Companies Act 2006: publication of final text. For general background to the 2006 Act, see Practice note, Companies Act 2006: materials. For a more detailed note on this topic, see Practice note, Directors' general duties under the Companies Act 2006. Chapter 2 of Part 10 (general duties of directors) came into force on 1 October 2007, other than the provisions relating to directors' conflict of interest duties (sections 175 to 177). Sections 177 to 175 came into force on 1 October 2008.

A guide to the duty to co-operate with and give information to an office-holder of an insolvent company under section 235 of the Insolvency Act 1986.

A Practice note explaining what constitutes interference with an easement and what remedies are available when interference occurs.

A note on how to effect peaceable re-entry of commercial premises, where the tenant has not paid rent.

This practice note considers the employment and media relations issues which may arise in relation to, and as a result of, an FCA investigation. It is part of a practical guide to the FCA enforcement process, written by PLC Financial Services. For an index to the FCA enforcement process practical guide, see Practice note, A practical guide to the FCA enforcement process: index.

This practice note outlines how the FCA notifies firms and individuals that they are to be subject to an FCA investigation. It suggests ways in which those under investigation can prepare and deal with some of the issues arising. This practice note is part of a practical guide to the FCA enforcement process, written by PLC Financial Services. For an index to the FCA enforcement process practical guide, see Practice note, A practical guide to the FCA enforcement process: index.

This practice note outlines the process by which matters are referred to, or otherwise come to the attention of, the FCA's Enforcement and Financial Crime division. It also identifies how the FCA uses enforcement as a regulatory tool and selects which cases to investigate. This practice note is part of a practical guide to the FCA enforcement process, written by PLC Financial Services. For an index to the FCA enforcement process practical guide, see Practice note, A practical guide to the FCA enforcement process: index. 

This practice note considers the role of and procedure followed by the Tax and Chancery Chamber of the Upper Tribunal (Upper Tribunal) with regards to financial services cases. It is part of a practical guide to the FCA enforcement process, written by PLC Financial Services. For an index to the FCA enforcement process practical guide, see Practice note, A practical guide to the FCA enforcement process: index. 

An outline note on the right to enfranchise and the right to a lease extension in relation to houses under the Leasehold Reform Act 1967, as amended by the Leasehold Reform, Housing and Urban Development Act 1993, the Housing Act 1996 and the Commonhold and Leasehold Reform Act 2002.

This practice note looks at the effect of the decision in Barber v Guardian Royal Exchange Assurance Group and, in particular, the recent cases that have arisen from defective attempts to equalise pension benefits between the sexes. The note also considers the scope for claims to be made by trustees and employers against their former professional advisers.

This note discusses the key points of the Regulation (EU) 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, known as Brussels IV. Richard Frimston is a member of the PLC Private Client consultation board.

A note on following the procedures for excluding security of tenure under the Landlord and Tenant Act 1954 (LTA 1954) when the lease is to be granted under an option agreement that allows the beneficiary of the option to nominate another party to take the lease in its place.

The note discusses the three devolved legislatures in the UK and the extent to which devolution has introduced new layers of complexity to the UK statute book. The note covers: The extent and application of the three jurisdictions within the UK. How Westminster legislation extends to Scotland, Northern Ireland and Wales.

In this practice note, Jane Tuckley, partner, and Nigel Barratt, Director of Research, from Travers Smith LLP's Financial Services and Markets department, outline the range of disciplinary sanctions for non-criminal offences and breaches which are available to the FCA under powers derived from the Financial Services and Markets Act 2000. This practice note is part of a series of Travers Smith LLP practice notes on the FCA's disciplinary and enforcement powers. For more information, see Practice note, FCA disciplinary and enforcement powers: a guide to content written by Travers Smith LLP.

In this practice note, Jane Tuckley, partner, and Nigel Barratt, Director of Research, from  Travers Smith LLP's Financial Services and Markets department, provide a summary of the FCA's information gathering powers under sections 165 and its supplementary powers under section 175, of the Financial Services and Markets Act 2000. This practice note is part of a series of Travers Smith LLP practice notes on the FCA's disciplinary and enforcement powers. For more information, see Practice note, FCA disciplinary and enforcement powers: a guide to content written by Travers Smith LLP.

In this practice note Jane Tuckley, a partner in Travers Smith LLP's Financial Services and Markets department, and Nigel Barratt, Director of Research in the same department, outline the complaints handling procedures of the Financial Ombudsman Service (FOS). For an overview of the FOS' statutory framework, constitutional issues and funding, see Practice note, Financial Ombudsman Service: statutory framework, constitution and funding. For a description of the three jurisdictions comprising the FOS scheme, see Practice note, Financial Ombudsman Service: jurisdiction. This practice note is part of a series of practice notes written by Travers Smith LLP outlining the FSA's disciplinary and enforcement powers. For more information, see Practice note, FSA enforcement regime: overview. This practice note, and the other FOS practice notes referred to above, are in the process of being updated by the authors to reflect the new UK regulatory structure that came into effect on 1 April 2013.

In this practice note Jane Tuckley, a partner in Travers Smith LLP's Financial Services and Markets department, and Nigel Barratt, Director of Research in the same department, outline the statutory framework under which the Financial Ombudsman Service (FOS) is established and operates. They also consider constitutional matters for the FOS, and the funding of the FOS. For a description of the three jurisdictions comprising the FOS scheme, see Practice note, Financial Ombudsman Service: jurisdiction. For an overview of the FOS' complaint handling procedures, see Practice note, Financial Ombudsman Service: complaint handling procedures. This note is part of a series of practice notes written by Travers Smith LLP outlining the FSA's disciplinary and enforcement powers. For more information, see Practice note, FSA enforcement regime: overview.

This practice note explains the various doctrines and principles concerned with insurance, including: What constitutes an insurable interest. Subrogation. Joint insurance. Double insurance. Noting. For information about insurance as it relates to commercial property, see Practice note, Property insurance.

A practice note on the termination (revocation or cancellation) of guarantees and the discharge of guarantees. It considers the following questions: When and how can a guarantee be terminated? What happens to a guarantee if the guarantor dies or becomes mentally incapable? What is the effect of terminating a guarantee? How are guarantees discharged? How do these principles apply to indemnities? It also briefly considers circumstances in which a guarantee may be set aside (undue influence, misrepresentation, breach of contract, duty to disclose and loss of security).

A note on orders to repair a way or bridge under section 56 of the Highways Act 1980.

A note on the European Convention on Human Rights and its interaction with the Human Rights Act 1998 including links to relevant PLC content.

This note tracks implementation of each of Lord Justice Jackson's recommendations for reform of civil litigation costs (including those not formally presented as recommendations) in specific types of litigation. The note links to a separate note dealing with all other recommendations.

A guide to directors' duties and potential liabilities in relation to companies in financial difficulties, including the directors' disqualification regime. This note contains a link to a detailed note on the fiduciary duties of directors of companies that are insolvent or near insolvent under United States law.

This note considers the rules governing the recovery of damages in claims for economic loss arising out of investment disputes involving investors and brokers. This will depend on whether such claims are framed in negligence, contract or fraud. It is important to be aware of the differences in approach as it is likely to affect the amount of damages that are recoverable.

This note address the issues that arise when it is possible for a party to bring proceedings in the courts of England and Wales, or the US. The note: Considers the key procedural differences between English and US litigation. Identifies major differences in the substantive laws of the two jurisdictions. Discusses the practical issues facing litigants in transatlantic litigation.

Where two or more persons are liable to another, they may be jointly liable, severally liable or jointly and severally liable. This note explains the concepts of joint, several, and joint and several liability.

A practice note on the procedures to exclude security of tenure from a business lease under the Regulatory Reform (Business Tenancies) (England and Wales) Order 2003 (SI 2003/3096).

A note on self-help remedies and the limits on exercising the right to forfeit, the right of distress and seeking payment of future rents from an undertenant.

The Landlord and Tenant Act 1988 places duties on landlords (and others) in relation to the grant of consent to dealings with leased property. This practice note examines those duties and the issue of reasonableness.

This practice note looks at the issues that need to be considered when drafting and negotiating a clause in a commercial lease that sets out the circumstances in which a landlord can forfeit the lease.

Guidance on the types of claim for which a liquidator of an insolvent company requires sanction to pursue certain claims under the Insolvency Act 1986 in relation to antecedent transactions, how a liquidator may obtain sanction from the company's creditors or the court , and the effect of sanction.

A note setting out the different functions undertaken by local authorities in England.

A note setting out the different categories and structures of local authorities in England.

A note discussing the principle that a valid notice given by a landlord under section 25 of the Landlord and Tenant Act 1954 (LTA 1954) cannot be unilaterally withdrawn. The same principle will apply to a request made by a tenant under section 26 of the LTA 1954.

A practice note on procedures in relation to interim rent applications under the Landlord and Tenant Act 1954. The note considers how interim rent should be calculated and when an application to court should be made.

A practice note discussing the landlord's right to oppose the renewal of a business tenancy on the ground that the premises are in disrepair (section 30(1)(a), Landlord and Tenant Act 1954). The note looks at: The meaning of disrepair in the context of the LTA 1954. The court's discretion under Ground (a). Considerations for the landlord and the tenant when dealing with an opposed lease renewal.

A practice note discussing the landlord's right to oppose the renewal of a business tenancy on the ground there are substantial breaches of the lease (section 30(1)(c), Landlord and Tenant Act 1954). The note looks at: The meaning of substantial breaches. The meaning of breaches connected to the tenant's use of the premises. The exercise of the court's discretion. Considerations for the landlord and the tenant.

A practice note discussing the landlord's right to oppose the renewal of a business tenancy on the ground that the tenant has an underlease of part and the landlord requires possession (section 30(1)(e), Landlord and Tenant Act 1954). This is the least common ground of opposition and there is very little case law to give guidance on how it should be used. The note looks at the requirements set out in the statute.

A practice note discussing the landlord's right to oppose the renewal of a business tenancy on the ground the landlord intends to occupy the premises for the purpose of its own business (section 30(1)(g), Landlord and Tenant Act 1954). The note looks at the test the landlord must satisfy to oppose a lease renewal on Ground (g), including what is meant by occupation and intention. It also discusses the exclusion of landlords who have owned the interest for less than five years.

A practice note on the criteria that must be satisfied for a tenant of a business lease to have security of tenure under the Landlord and Tenant Act 1954 (LTA 1954).

This note considers the legal, regulatory and reputational risks arising from communications and all forms of document management, including: Monitoring and review. Storage and disposal of documents. Document retention periods.

A practice note on mortgagees, their rights and duties and commonly asked questions when dealing with mortgagees in possession principally in relation to land and real estate.

A note outlining the development of the common law on the no loss defence, or the defence that an assignor may not recover more than the assignee, in the context of construction and engineering cases. These cases are sometimes said to refer to a possible "black hole".

A guide to changes in insolvency practice and procedure brought about by Practice direction: Insolvency Proceedings, which came into force on 23 February 2012. The practice direction replaces Practice direction on insolvency proceedings [2007] BCC 842 and all other previous practice directions, practice statements and practice notes relating to insolvency proceedings.

This note provides an overview of the pre-action protocol for possession claims based on rent arrears predominantly dealt with in the county court.

Privilege against self-incrimination exempts a person from being compelled to produce documents or provide information which might incriminate him in any potential or current criminal proceedings in England and Wales. This practice note provides an overview of the relevant law.

A note on the provisions and effect of the Public Bodies Act 2011, including practical guidance for organisations that: Have existing commercial and other dealings with bodies which are susceptible to abolition or modification. Are considering entering into new contracts with these bodies.

A note on the various types of quasi-legislation and how they should be treated.

A practice note summarising the consultation process, begun in July 2006, to reform insurance contract law.

An outline of the law of damages for actions in contract and tort and the remedies that may be agreed by contracting parties. 

A note outlining the law of restitution.

This practice note discusses the tools available to those who have to apply an ambiguous piece of legislation.

A guide to the procedures under UK corporate insolvency law to enable the adjustment of antecedent transactions and the protection of the insolvent company's assets for the benefit of its creditors. This note covers disclaimer, transactions at undervalue, preferences, extortionate credit transactions, invalid floating charges, transactions defrauding creditors, contribution by past shareholders and directors, and common law rules.

This note considers: The Rome I Regulation on the law applicable to contractual obligations.   The Rome II Regulation on the law applicable to non-contractual obligations. It summarises the background to both Regulations, their legislative history and key objectives (including the instruments which preceded their introduction, namely the Rome Convention on the law applicable to contractual obligations and the Private International Law (Miscellaneous Provisions) Act 1995).

Under Rome II (Regulation 2007/864) the courts of all EU member states other than Denmark must apply the same set of rules to determine the law that will govern non-contractual obligations arising between parties in civil and commercial matters. This practice note outlines the key general provisions of Rome II, highlighting the key provisions from an English law perspective and focusing on: Drafting agreements as to choice of law. The law governing pre-contractual negotiations. The law governing product liability cases. The steps that commercial parties should consider taking in the light of the rules in Rome II.

This note explains what the Court of Justice of the European Union (formerly known as the European Court of Justice (ECJ)) is, why a reference would be made to it and who can make a reference. The note gives examples of questions which might be referred to the ECJ and sets out a brief summary of the procedure to be followed and the effect of a ruling by the ECJ on the question referred.

A note on boilerplate clauses that create or limit contracting parties' rights to set off monetary cross-claims against each other. It also outlines the following non-contractual rights of set-off: legal set-off, equitable set-off, banker's set-off and insolvency set-off.

A practice note looking at how the English courts will interpret requirements, in transaction documents and the parties constitutional documents, to act in accordance with Sharia law.

The Solicitors' Code of Conduct 2007 and all other existing Solicitors Regulation Authority (SRA) rules have been rewritten and reformatted into a new SRA Handbook. The date for implementation of the Handbook is currently scheduled to be 6 October 2011. This Practice note highlights the ten key points that in-house lawyers need to consider in advance of its introduction.

A note on the requirements for making a statutory declaration to exclude a tenancy from the provisions of the Landlord and Tenant Act 1954.

The tax implications of a settlement may be a determinative factor when considering whether to accept or make an offer. This note considers when awards of damages will be subject to tax as income or as chargeable gains and the tax treatment of the payment of damages.

A note on how the Rome Convention and Rome I Regulations operate to affect which law should apply to the employment contract, both where the parties have chosen a law and where they have not made a choice of law. The note also examines, briefly, the Rome II Regulation.

A note on the extent to which Convention rights may be relied on in relation to acts of public authorities that occurred before the Human Rights Act 1998 came into force on 2 October 2000.

A practice note discussing when time limits in a contract are essential conditions of the contract, a breach of which would amount to a fundamental breach that would justify the other party terminating the contract.

The trust is widely admired and recognised in many jurisdictions around the world. Although primarily used by individuals, they also have a wide variety of applications in a commercial context. This practice note provides an introduction to trusts and trustees and considers some commercial applications of trusts.

This note looks at the Administrative Court procedures that are in place for a claimant who needs an application for permission for judicial review to be considered urgently or wants to apply for interim relief, for example, to prevent a public authority from acting on the decision that is being challenged. It also includes information on making an emergency out of hours application.

This practice note addresses the circumstances in which vicarious liability arises, at common law and under statute. It also looks at the implications of vicarious liability, and the alternative bases for attributing liability where vicarious liability is not applicable.

This practice note examines what constitutes a public authority for the purposes of the Human Rights Act 1998. The distinction between public authorities and public functions and private bodies and private functions is unclear, particularly in relation to hybrid bodies, where only some functions may be public (section 6(5), HRA). The position is made more difficult with public/private partnership arrangements and public bodies contracting out functions to the private sector. This distinction is important because a public authority must not act in a way that is incompatible with the Convention rights (section 6, HRA).

A note on who is the competent landlord for the purposes of the Landlord and Tenant Act 1954 in the period between completion and registration of a transfer.

A writ of sequestration is a method of enforcement that may be used to enforce a judgment, order or undertaking in certain circumstances. It may be ordered as a penalty for contempt of court. This practice note summarises the specific procedural rules relating to writs of sequestration in CPR 81.