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Privilege in criminal investigations—checklist

Privilege in criminal investigations—checklist The following are only suggested guidelines, given that each criminal investigation will turn on its own facts. This Checklist should be read in conjunction with Practice Notes: Legal Professional Privilege in criminal proceedings and Maintaining privilege during criminal investigations. Confidentiality is key and must be maintained. If a document or communication was not confidential when it was first made, or if it loses its confidentiality, it will generally not attract Legal Professional Privilege (LPP). In order to assert privilege, careful consideration should be given to whether it is legal advice privilege or litigation privilege which is being asserted, and different considerations will apply to each. Steps to maintain legal professional privilege At the outset In the event that the client seeks advice before the criminal investigation commences: Legal advice privilege • consider whether legal advice privilege applies, ie: ◦ is the communication confidential? If yes ◦ is the communication sent by a lawyer to their client or vice versa? If yes ◦ is the communication made...

Seller's SPA drafting guide (unconditional completion)—checklist

Seller's SPA drafting guide (unconditional completion)—checklist This Checklist serves as a guide of certain key matters for the seller’s solicitors to consider when drafting, or commenting on, a share purchase agreement (also known as SPA or share sale agreement) recording the sale and purchase of the entire issued share capital of a private limited company, where the transaction involves simultaneous exchange and completion. Parties The drafter should: • check to see if the legal and beneficial title to the sale shares is split, ie check to see if the seller's sale shares are held in the name of a nominee, requiring the beneficial owner to: ◦ be named as the seller in the SPA instead of the registered holder, and ◦ procure the sale of the sale shares to the buyer • check to see if the transaction involves any parties connected with company directors, which may constitute substantial property transactions requiring certain approvals (see Practice Note: Substantial property transactions—requirement to obtain members’ approval) • resist proposals to include in...

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When does the Takeover Code apply?—flowchart

When does the Takeover Code apply?—flowchart This flowchart sets out the circumstances in which the City Code on Takeovers and Mergers (Code) will apply. The Code may apply to takeover bids, merger transactions and other transactions that have or may have, directly or indirectly, an effect on the ownership or control of a business. The Code limits its application in practice mostly to those transactions having as their objective or potential effect the obtaining or consolidation of voting control of a company subject to the Code and does not explicitly apply to offers for non-voting or non-equity share capital except where these are corollary to offers for voting shares. This flowchart sets out the companies which may be subject to the Code. Part 1 of our public company takeovers quiz includes case studies of circumstances in which the Code applies. The

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Skeleton Arguments in an appeal—general provisions

Skeleton Arguments in an appeal—general provisions This Practice Note contains guidance to the provisions contained within CPR 52, CPR PD 52A, CPR PD 52B and CPR PD 52C. It provides general guidance on skeleton arguments in appeals to the County Court, the High Court and the Court of Appeal. For more information on the scope of this content, see: Civil appeals: general and preliminary considerations—overview. Practitioners may also wish to refer to the following Practice Notes and Checklists: • Skeleton arguments • Starting an appeal in the Court of Appeal—Skeleton arguments • Responding to an appellant's notice—the written statement and respondent's notice—Respondent's skeleton arguments and supplementary skeleton arguments • Conducting an appeal in the County Court or the High Court—Filing skeleton arguments in appeals in the High Court or County Court • Skeleton argument—checklist • Civil contempt proceedings—appeals, purges and discharge • Supreme Court—documents for appeal hearing—on or after 2 December 2024 In addition to all and any relevant CPR provisions, practitioners should also comply with any provisions in...

Indications on sentence

Indications on sentence Judicial independence is fundamental to the rule of law. The integrity of the criminal justice system depends on a fair and public hearing by an independent and impartial tribunal. Alongside these fundamental principles exists the need to ensure justice is carried out expeditiously and there is a recognised need for discussions on plea to take place. An advance indication as to likely sentence is part of this process. The potential advantage of gaining an indication on sentence in advance is that the defendant can make a better informed decision about whether to plead guilty or not. The Attorney General's guidelines on the acceptance of pleas emphasises the importance of transparency in the conduct of justice and, in particular, sets out a formalised process for the provision of indications on sentence in the Crown Court. These are generally known as 'Goodyear indications'. The Court of Appeal issued guidelines that amount to the introduction of a formalised procedure of advance sentence indication in R v Goodyear. These are...

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Ireland—Notice of assignment of contractual rights and form of acknowledgement for an assignment by way of security: single company assignor—bilateral—specific monies

Notice of assignment of contractual rights from an assignor incorporated as a limited company in Ireland with a form of acknowledgement from the contract counterparty This is a Precedent Notice of Assignment which can be used to give notice of an assignment of contractual rights by way of security from an assignor to its contract counterparty. This drafting note explains the context in which this Precedent Notice of Assignment might be used as well as the features of this Precedent Notice of Assignment and the assumptions on which it is based. For information on taking security over contractual rights, see Practice Note: Ireland—Assignments by way of security. Parties to this Precedent Notice of Assignment This Precedent Notice of Assignment is designed for use in bilateral transactions (ie where there is only one lender) as opposed to syndicated transactions (ie where there is more than one lender). It has been drafted as being: • from a single security provider (defined as the ‘Assignor’) • to its contract counterparty and refers to...

Upjohn warning (US)

Upjohn warning (US) I am a lawyer for [insert organisation name]. I represent only [insert organisation name], and I do not represent you personally. I am conducting this interview to gather facts in order to provide legal advice to [insert organisation name]. This interview is part of an investigation to determine the facts and circumstances of [insert investigation subject] in order to advise [insert organisation name] how best to proceed. Your communications with me are protected by the attorney-client privilege. But the attorney-client privilege belongs solely to [insert organisation name], not you. That means [insert organisation name] alone may

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How can I ensure security and guarantees remain effective on a refinancing?

How can I ensure security and guarantees remain effective on a refinancing? Why would my client want to leave existing security and guarantees in place? On a refinancing, all indebtedness of a borrower being refinanced (Refinanced Indebtedness) is repaid, unutilised commitments cancelled, and all related credit support (guarantees and security) in respect of the Refinanced Indebtedness falls away by operation of law, or (more often in practice) is otherwise released. This enables the borrower and credit support providers to grant fresh credit support to the incoming lender or lenders, or its or their agent or trustee. However, a borrower would often prefer to be able to leave in place the existing credit support arrangements, in order to save the time and expense of creating and perfecting new credit support arrangements. Incoming lenders also benefit from such an approach, as they may be able to take advantage of ‘hardened’ arrangements which were put in place prior to the commencement of the suspect period. For more information on hardening periods and claw-back...

When calculating future loss of earnings, what happens if a self-employed person sells their business as they can no longer work? Does the lump sum received have to be set off against their claim (eg for loss of profits)?

When calculating future loss of earnings, what happens if a self-employed person sells their business as they can no longer work? Does the lump sum received have to be set off against their claim (eg for loss of profits)? Future loss of earnings for self-employed persons When the medical evidence demonstrates that the claimant is unlikely to work again, the court's task relates to assessing the claimant's likely earnings for the period of loss and applying the appropriate multiplier to that loss. The issues are questions of fact. What would the claimant have earned? How long would the claimant have worked? For further information, see Munkman on Damages for Personal Injuries and Death: Restriction on future earning capacity [11.19]. If the claimant carries on business through the medium of a limited company it is still possible for him to recover any loss of profits of the company even though, technically, the loss is the company's and not his own. For further information on loss of earnings...

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SFO’s growth push a ‘difficult line to tread’ for prosecutor

Law360, London: The Serious Fraud Office’s (SFO) recent promise to assist UK Plc with growth has raised eyebrows among former officials who question the optics of adopting political talking points that, on the surface, appear to distract from investigating and prosecuting economic crime.

Hadkinson versus unless orders (Ahmad v Faraj)

Family analysis: The court was concerned with the failure of one party, the husband, to comply with a legal services payment order (LSPO) made in favour of another party, the wife, in order to fund her representation on appeals made by the husband and the second respondent (IBB). The husband and IBB appealed a first instance decision in a financial relief matter and the wife secured a LSPO against the husband for representation during the appeal proceedings. The husband did not comply with that order and the wife applied for an unless order or Hadkinson order to be made to enforce the LSPO. The court declined to make an unless order as it was disproportionate to immediately dismiss the husband’s claim. The court did make a Hadkinson order (per Hadkinson v Hadkinson), which was considered more proportionate and the conditions in de Gaffori v de Gaffori for making such an order were satisfied. Anastasia Gilfillan, barrister, and Emily Lennon, pupil, at 1 Hare Court, consider the decision.