GLOSSARY
Knowledge definition
What does Knowledge mean?
Knowledge is knowing that something is so, or being “virtually certain” about something.
The inclusion of the word “Knowingly” makes clear that mens rea is required to prove the offence, but the precise nature or extent of the knowledge required to be proved needs to be considered. A person may, for example, be convicted of being knowingly concerned in the fraudulent evasion of any prohibition with respect to goods, without being aware of the precise nature of the items in question; it suffices if he knew he was involved in the evasion of a prohibition, and the goods were in fact prohibited. The requirement of “knowingly” is satisfied by proof of “wilful blindness”, ie deliberately shutting one's eyes to the obvious or refraining to make inquiries to avoid having a suspicion (eg that goods are stolen) confirmed.
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The defence of insanity
What is the defence of insanity?Insanity is a common law defence to a criminal charge. A defence of insanity is available in both the magistrates' court and the Crown Court. At the heart of the rationale for the insanity defence is the principle that criminal punishment should only be imposed upon those who are responsible for their conduct. What constituted insanity was debated until resolved by the rule in M'Naghten's Case. In that case, the defendant, Daniel M'Naghten shot and killed the secretary to the politician Sir Robert Peel, intending to kill Sir Robert. He was tried for murder but acquitted on the ground of insanity. High Court judges were subsequently required to answer questions in the House of Lords as to the law governing the defence of insanity. Their answers were reported, as if they constituted judgments and precedent, as the M'Naghten Rules and included the following key principle:‘[T]o establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong...’Therefore, there are
Absconding and fraudulent dealings with property
Proceedings for offences of absconding and fraudulent dealings with propertyThe Insolvency Act 1986 (IA 1986) creates specific offences relating to property and an individual adjudged bankrupt.They are:•absconding with property•disposing of property obtained on credit, not paid for, and•acquiring property where money is owed by a bankruptIn each case the onus is on the prosecution to prove that the defendant was bankrupt at the relevant time.All of the offences are triable in either the magistrates' court or the Crown Court.Proceedings cannot be instituted after a bankruptcy order has been annulled and the bankrupt has been restored to his pre-bankruptcy status. Prior to annulment there is nothing to prevent the institution of proceedings.The IA 1986 expressly provides that a bankrupt is not guilty of an offence in respect of any thing done after the discharge of the bankruptcy order.Proceedings for each offence can only be instituted by the Secretary of State or by, or with the consent of, the Director of Public Prosecutions.Elements of the offence of absconding with propertyA bankrupt person will commit an offence if they:•leave, attempt to leave or make preparations to leave England and Wales•with any property •that they are required to deliver to the official receiver or trustee, or•if they leave or make preparations to leave England and Wales with
Fraudulent evasion of income tax
Offence of fraudulent evasion of income taxSection 106A of the Taxes Management Act 1970 (TMA 1970) provides that a person commits an offence if they are knowingly concerned in the fraudulent evasion of income tax by themselves or any other person. The offence, which is triable either way, does not concern the evasion of taxes other than income tax and capital gains tax and does not apply to things done or omitted before 1 January 2001.Elements of the offence of fraudulent evasion of income taxBeing 'knowingly concerned'The test for being 'knowingly concerned' in an income tax fraud was one requiring both:•knowledge (rather than mere suspicion) of an offence, and •actual involvement in it (simply paying for services in cash was unlikely to satisfy this test)In other words, the person must have knowledge and involvement in the fraud. Someone can be said to know something if they are sure that is so, and this is different in law to recklessness which means taking unjustified risks (R v Godir). An example of this is where a person helps another evade income tax by helping to produce false business records. The offence did not apply to a person merely because they were invited to pay cash 'with a nod and a wink' by a trader or provider of services.For a person to
Corporate governance—Malta—Q&A guide
Corporate governance—Malta—Q&A guide This Practice Note contains a jurisdiction-specific Q&A guide to corporate governance in Malta published as part of the Lexology Getting the Deal Through series by Law Business Research (published: May 2022). Authors: GVZH Advocates—Luca Vella; Catherine Janula; Nico Fauser 1. What are the primary sources of law, regulation and practice relating to corporate governance? Is it mandatory for listed companies to comply with listing rules or do they apply on a ‘comply or explain’ basis? Good corporate governance practices apply to all entities, with the main source of corporate governance being the Companies Act (Chapter 386 of the Laws of Malta), which regulates the division of authority between the board of directors and general meetings of shareholders. The memorandum and articles of association also act as an important source of corporate governance practices, since this document regulates the internal management and administration practices of companies. Public listed entities are subject to the Code of Principles of Good Corporate Governance set out in the Capital Market Rules issued by the Malta Financial Services Authority (the Code). The Capital Market Rules list 12 principles of good corporate governance that public listed companies should endeavour to adopt. If a company chooses not to comply with one or more of the provisions of the Code, it must give a careful and clear explanation with respect to the reason for
Art law—authenticity, provenance and attribution of artworks
Art law—authenticity, provenance and attribution of artworks ‘The attribution of works of art to particular artists is often a matter of great controversy’ (per Sir Raymond Evershed MR). The value of the art market continues to grow, and the attribution of a work to a particular individual can have a dramatic impact on its sale price. As Jordan Holland, a barrister involved in the art law area has said in an article on this subject: ‘ … a desirable attribution has the capacity to raise the price of a piece from tens of thousands of pounds to tens of millions of pounds. When this is taken together with the influx of new collectors, buyers and art investors into the market it is hardly surprising that the court is being asked to consider the attribution of art and cultural property on an increasingly frequent basis. In doing so, it is required to answer questions which are different from those with which it is usually faced’. See: The approach of the English court to connoisseurship, provenance and technical analysis, Jordan Holland, Dec. 2012, Art Antiquity & Law (Vol. 17, Issue 4), Institute of Art and Law (Not available on Lexis®️). This Practice Note examines disputes in relation to the authenticity of artworks, ie the attribution of a piece to a particular artist. There are a broad range of issues that can
Artificial intelligence and machine learning—an introduction to the technology
Artificial intelligence and machine learning—an introduction to the technology This Practice Note explains the basics of artificial intelligence (AI) and machine learning (ML) technology. It covers: • The history of AI and ML • The importance of data • Training an ML model • Types of ML • Considerations when selecting or assessing an ML algorithm • Neural networks • What is deep learning? • Common neural network architectures • Some examples of other commonly used ML algorithms • Key challenges for AI and ML—transparency, explainability and bias • Privacy and data protection • Protecting AI technology This Practice Note does not consider legal and regulatory issues arising in connection with the use or development of AI or ML technologies. For more on these matters, see Practice Notes: • Artificial intelligence—data protection • Artificial intelligence—intellectual property • Artificial intelligence in the EU—the key legal issues and Contractual considerations for the procurement of artificial intelligence—checklist. For a timeline of key legal developments in relation to AI, see Practice Note: Artificial intelligence—tracker. The history of AI and ML Although often thought of (and used) as a new exciting technology, AI has in fact been around for over 70 years. While sometimes assumed to be incomprehensible to anyone without a specialism in computing, AI is built on relatively simple mathematical concepts. Even today, when it has advanced into more computational complex algorithms, it is important to remember that it is just that, mathematical concepts implemented in software and written
The unfair dismissal compensatory award
The unfair dismissal compensatory award An award of compensation for unfair dismissal generally consists of a basic award and a compensatory award. The compensatory award is intended to compensate the employee for financial losses suffered as a result of the unfair dismissal. It may be subject to various increases or deductions. The basic award is considered in Practice Note: The basic award. For guidance on unfair dismissal remedies generally, see Practice Note: Unfair dismissal remedies—general. See also the Lexis®Calculate online calculators: • basic award calculator, and • Lexis®Calculate Employment: unfair dismissal schedule of loss application (and the related Practice Note: Guide to using the Lexis®PSL Employment Schedule of Loss application) Calculation The compensatory award is such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the employee as a result of dismissal and in so far as that loss is attributable to actions of the employer. It is intended to compensate the employee rather than to punish the employer or give a gratuitous benefit to an employee for whom the tribunal feels sympathy. No account should be taken of any period during which losses are caused by something other than the dismissal. In ascertaining the claimant's loss, the employment tribunal must apply the same rule concerning the duty of a person to mitigate their loss as applies to damages recoverable under the common law.
End of life planning
End of life planning Importance of discussing end of life plans Towards the later stage of a person’s life, conversations may take place between them, their families and those who look after them, such as doctors and other health care professionals to understand and share expectations and wishes regarding future care and treatment. These important conversations can help the person make informed decisions, plan ahead, give them control over care and treatment they receive or do not want to receive, and provide peace of mind. The person’s plans can include any, or all of, the following: • making a health and welfare lasting power of attorney (LPA) appointing another person or persons to make decisions, if and when they lack mental capacity to make a decision for themselves • making an advance decision to refuse specified medical treatment in specified circumstances in the future • setting out their wishes for care and treatment in an advance statement or an advance care plan, which may be taken into account when care and treatment is being provided Sometimes the person’s decision to refuse treatment may come into conflict with their own family’s wish for treatment to be provided. To avoid conflict, they should discuss their views and plans with the people who care about them. This is particularly important if the person has made an advance decision to refuse treatment and they then make a
Mortgage and home finance conduct of business—distribution and disclosure requirements
Mortgage and home finance conduct of business—distribution and disclosure requirements Scope of this Practice Note and introduction to the FCA's distribution and disclosure requirements This Practice Note considers the Financial Conduct Authority (FCA)'s Mortgages and Home Finance: Conduct of Business sourcebook (MCOB) requirements concerning distribution and disclosure standards that lenders, providers and intermediaries of regulated mortgage contracts (RMCs), home reversion plans (HRPs), home purchase plans (HPPs) and regulated sale and rent back agreements (SRBAs) have to comply with and which are predominantly contained in chapters 4 to 9 of MCOB (MCOB 4 to MCOB 9). It also touches on the requirements for the proper calculation of the annual percentage rate (APR) and the Annual Percentage Rate Charge (APRC) in chapters 10 and 10A of MCOB (MCOB 10). Together, RMCs, HRPs, HPPs and SRBAs are referred to as 'home finance transactions' (MCOB 1.2.2G(1)). RMCs which are life-time mortgages and HRPs are together referred to as 'equity release transactions'. For more information about the regulation of home finance transactions and how the products are defined, see Practice Notes: Regulated mortgage contracts and home finance transactions defined, Arranging deals in home finance transactions, Advising on mortgages and home finance transactions and Entering into and administering home finance transactions. The following Practice Notes focus on other aspects of MCOB: • Mortgage and home finance conduct of business—application and general requirements • Mortgage and home finance
Applying to naturalise as a British citizen: eligibility
Applying to naturalise as a British citizen: eligibility Naturalisation is the most common way for adults to acquire British citizenship. The naturalisation route to British citizenship enables adults who do not fulfil automatic registration criteria but who have lived in the UK for specified periods to apply to become a British citizen. A person who becomes a British citizen through naturalisation is considered a British citizen otherwise than by descent. The current legal framework governing the criteria under which an application for naturalisation can be made is set out in the British Nationality Act 1981 (BNA 1981). BNA 1981, s 6 and Sch 1 set out a series of requirements, some of which are compulsory and others of which are subject to an exercise of discretion on the part of the Secretary of State for the Home Department (SSHD) to disregard. The requirements for naturalisation are different for an applicant who is married to, or in a civil partnership with, a British citizen, or who is in Crown service overseas or married to a British citizen in such service. Naturalisation, unlike registration, is not an entitlement. The grant of a certificate of naturalisation is at the discretion of the SSHD. Under BNA 1981, s 6, the SSHD may grant a certificate of naturalisation to a person of full age and capacity if satisfied that person meets the requirements set out in
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Warranty limitations—pro-seller—share purchase agreement
Insert the following definitions as new definitions into clause 1 of Precedent: Share purchase agreement—pro-buyer—corporate seller—conditional—long form: 1 Definitions and interpretation Claim means a claim by the Buyer for any breach of the provisions of this Agreement (including a claim for breach of the Warranties); Data Room means the data room relating to the [Company OR Group] comprising all contracts, agreements, licences, documents and other information made available to the Buyer and its advisers, as listed in the Data Room index attached to the Disclosure Letter; The ScheduleLimitations on the Warranties Replace Schedule 5 of Precedent: Share purchase agreement—pro-buyer—corporate seller—conditional—long form with the following schedule: 1 General 1.1 The following provisions of this Schedule [5 OR [insert schedule number for limitations on the warranties schedule]] shall, subject to their terms, limit the liability of the Seller in relation to a Claim[ and, where specifically provided, a Tax Covenant Claim] except where such Claim[ or Tax Covenant Claim] arises as a result of fraud on the part of the Seller. 1.2 The Seller shall not be liable for any Claim unless written particulars of it
Personal data sharing agreement—independent controllers—one-way
Personal data sharing agreement—independent controllers—one-way This Agreement is made on [date] Parties 1 [insert name of disclosing party] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Disclosing Party), and 2 [insert name of receiving party] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Receiving Party), (each of the Disclosing Party and the Receiving Party being a party and together the Disclosing Party and the Receiving Party are the parties). Background (A) The parties have identified a requirement to share the Shared Data for the Permitted Purpose. (B) The parties have decided to create a framework for the [systematic OR ad-hoc OR one-off] sharing of the Shared Data, which is likely to require sharing of the Shared Personal Data. (C) The Disclosing Party considers that it may share the Shared Personal Data with the Receiving Party on the legal basis of the Permitted Lawful Basis. (D) [The parties have completed a data protection impact assessment in respect of the planned sharing of the Shared Personal Data under this Agreement, and have agreed that this Agreement will assist with mitigating certain risks that have been identified.] (E) The parties’ objectives in sharing the Shared Personal Data, and the reasons why that is necessary, are set out at paragraphs 1
Lease of a rooftop area to an electronic communications operator—new code
Lease of a rooftop area to an electronic communications operator—new code HM Land Registry Prescribed Clauses [ LR1. Date of the lease [date] LR2. Title Number[s] LR2.1 Landlord’s title number [s] [title numbers out of which this lease is granted. Leave blank if not registered] LR2.2 Other title numbers [existing title number(s) against which entries of matters referred to in LR9, LR10, LR11 and LR13 are to be made] LR3. Parties to this lease Landlord [name of Landlord] [of OR incorporated in England and Wales with company registration number [number] whose registered office is at] [address] Tenant [name of Tenant] [of OR incorporated in England and Wales with company registration number [number] whose registered office is at] [address] Other parties None LR4. Property In the case of a conflict between this clause and the remainder of this lease, for the purposes of registration, this clause shall prevail. The property described in Part 1 of Schedule 1 to this Lease.This Lease contains provisions relating to the creation or passing of easements — see clause 3.1, clause 3.4 and Part 2 of Schedule 1. LR5. Prescribed statements etc LR5.1 Statements prescribed under rules 179 (dispositions in favour of a charity), 180 (dispositions by a charity) or 196 (leases under the Leasehold Reform, Housing and Urban Development Act 1993) of the Land Registration Rules 2003 [None OR [applicable prescribed statement] OR See clause [relevant clause reference]]. LR5.2 This lease is made under, or by reference
Recognising crime—red flags and warning signs for staff—law firms
Recognising crime—red flags and warning signs for staff—law firms You must remain alert to the red flags and warning signs of crime potentially taking place in our organisation. While you do not have to behave like a police officer, you must make the sort of enquiries that a reasonable person (with the same qualifications, knowledge and experience as you) would make. This awareness tool identifies typical red flags and warning signs that may indicate that our firm is involved in or is itself being used to commit crime (eg money laundering, terrorist financing, bribery, corruption, property or mortgage fraud or organised crime). These factors do not automatically mean that crime is taking place, but you should be aware of them and pay particular attention to matters where a number of factors are present. These red flags and warning signs would normally require further investigation. Methods for committing crime change all the time. We have set out below typical general red flags and warning signs, broken down into three categories: (1) the client, (2) the money, (3) the transaction and then signs to look out for in specific areas of work. The lists are not exhaustive. 1 The client Red flags and warning signs in relation to the client include where the client: —is excessively obstructive or secretive; —is a politically exposed person (PEP); —uses an intermediary, or does not appear to be directing
Share purchase agreement—pro-buyer—corporate seller—conditional—long form
Share purchase agreement—pro-buyer—corporate seller—conditional—long form This Agreement is made on [insert day and month] 20[insert year] Parties 1 [Insert name of selling corporate entity] incorporated in [England and Wales OR [insert country of incorporation] OR with registered number [insert company number] whose registered office is at [insert address] (the Seller); 2 [Insert name of purchasing corporate entity] incorporated in England and Wales OR [insert country of incorporation] OR with registered number [insert company number] whose registered office is at [insert address] (the Buyer), and 3 [Insert name of guarantor entity] incorporated in England and Wales OR [insert country of incorporation]] with registered number [insert company number] whose registered office is at [insert address] (the Guarantor) [(each of the Seller, the Buyer and the Guarantor being a Party and together the Seller, the Buyer and the Guarantor are the Parties).] Background (A) The Company (as defined below) is a private company limited by shares and is incorporated in [England and Wales OR [insert country of incorporation]]. Details of the Company are set out in Schedule 1. (B) The Seller is the legal and beneficial owner of the Sale Shares (as defined below), being in aggregate the entire allotted and issued share capital of the Company. (C) The Seller has agreed to sell and the Buyer has agreed to purchase the Sale Shares on the terms of this Agreement. (D) The Guarantor has
Remote supervision guidelines for supervisors—law firms
Remote supervision guidelines for supervisors—law firms This document provides guidance to [partners OR members OR directors ] [, managers] and any other member of staff involved in supervising staff working remotely. It also applies to the supervision of contractors who work remotely. What the SRA expects from us The SRA imposes general requirements on supervising work, together with specific regulatory requirements in relation to training and supervising our trainee solicitors. The SRA’s core regulatory requirements in relation to supervision are found in the two Codes of Conduct (the SRA Code for Solicitors, RELs and RFLs and the SRA Code for Firms), which should be read in the context of the SRA Principles. Additional requirements relating to supervision are peppered throughout the SRA Standards and Regulations. The core requirements in the Codes of Conduct are set out below: Obligations applying to the firm Obligations applying to individual solicitors, RELs and RFLs regulated by the SRA The firm remains accountable for compliance with the SRA’s regulatory arrangements where our work is carried out through others, including our managers and those we employ or contract with. Where you supervise or manage others providing legal services, you:—remain accountable for the work carried out through them, and—effectively supervise work being done for clients The firm must ensure our managers and employees:—are competent to carry out their role,—keep their professional knowledge and skills up
Financial services outsourcing agreement (intra group)
Financial services outsourcing agreement (intra group) This Agreement is made on [insert date] Parties 1 [Insert name of party] a company incorporated in England and Wales (under number [insert registered number ]) whose registered office is at [insert registered address] (the Service Provider) and 2 [Insert name of party] a company incorporated in England and Wales (under number [insert registered number]) whose registered office is at [insert registered address] (the Firm) (each of the Service Provider and the Firm being a Party and together the Service Provider and the Firm are the Parties) Recitals: (A) The Firm is an [insert, eg investment management and advisory firm] and is authorised and regulated by the authority'>Financial Conduct Authority (FCA) (B) The Firm is a wholly owned subsidiary of the Service Provider (C) The Parties have decided to enter into this Agreement to document those operational functions which are being outsourced to the Service Provider and which are, in the opinion of the Firm, important or critical to compliance by the Firm with the conditions and obligations of its authorisation or its other obligations under UK law on markets in financial instruments, or its financial performance, or the soundness or the continuity of its investment services and activities. 1 Definitions 1.1 In this Agreement, unless otherwise provided: Agreed Service Levels • means the service levels set out in Schedule 2 to this Agreement; Applicable Law • means any law, rule,
Transfer of part by way of exchange
Transfer of part by way of exchange Precedent transfer Exchanges are now almost invariably effected by separate transfers, each containing the usual title guarantees given by ordinary sellers. There is no restriction on the nature or value of the properties exchanged. A freehold interest can validly be exchanged for a leasehold interest (IRC v Littlewoods Mail Order Stores [1962] 2 All ER 279, HL) and any necessary payment can be included by way of equality of exchange. An adaptable Word version of the precedent form TP1 can be downloaded, saved or printed from the link on this page. Drafting notes to precedent transfer Panel 1—Title numbers If there are a number of properties, each title number should be listed alphanumerically and may be numbered starting with one, and each property listed in the same order as the title numbers and correspondingly numbered. Panel 3—Property description The optional wording is for use where the Property is unregistered. Where a plan accompanies the transfer, HM Land Registry requires detailed rules relating to the plan to be followed, otherwise the application for registration will be rejected. The rules are set out in HM Land Registry Practice Guide 40. HM Land Registry will reject plans that have not been signed by the parties. The rules provide for this in the case of a dealing with part of the land in a registered title and it is good practice
Report on title—long form
Report on title—long form Property: [insert name and/or address of the Property] (‘Property’) Purchaser: [insert name, address and (if applicable) company registration number of buyer] Transaction: [insert brief details] 1 Executive summary 1.1 Scope of report This report is addressed to you [insert buyer’s name] and has been prepared for your sole benefit in connection with your proposed acquisition of the Property. This report may not be disclosed to or relied upon by any other party without our prior written consent. 1.2 [ Good and marketable title We are of the opinion that, subject to the matters referred to in this report, upon completion of the purchase of the Property, payment of [ stamp duty land tax OR land transaction tax] and registration at HM Land Registry, you will obtain a good and marketable title to the Property.] 1.3 Areas of concern [Insert any concerns about the Property arising from your due diligence]. [Title indemnity insurance [has been OR will be] obtained in respect of [insert details of title defect which has been/will be insured against]. The indemnity insurance policy provides cover up to a maximum of £[insert amount] for a period of [insert period of cover] against [insert risks covered].] [[Insert any other relevant information and advice about the policy.]] 2 Transaction summary and key terms [You have informed us that this is an investment purchase and this report is based on the assumption that you will continue to use the
Character merchandising agreement—pro-licensee
Character merchandising agreement—pro-licensee This Agreement is made on [insert date] Parties 1 [insert name], a company incorporated in England and Wales, whose registered number is [insert company number] and whose registered office is at [insert address] (Licensor); and 2 [insert name], a company incorporated in England and Wales, whose registered number is [insert company number], whose registered office is at [insert address] (Licensee) (each of the Licensor and the Licensee being a party and together the Licensor and the Licensee are the parties). Background (A) The Licensor is the proprietor of certain trade marks[, copyright ] [ and designs] relating to [insert character name] the famous fictional character[s] as featured in [insert details of relevant film, cartoon, comic book, computer game etc]. (B) The Licensee is [insert background to licence/relevant transaction]. (C) The Licensor has agreed to grant a licence to the Licensee to use the trade marks[, copyright] [ and designs] on the terms and conditions of this Agreement. Agreement: 1 Definitions and interpretation 1.1 In this Agreement: Assets • means the fictional character[s] [insert name(s)], as featured in [insert details] and depicted on pages [insert numbers] of the Style Guidelines; Business Day • means a day other than a Saturday, Sunday or public holiday[, on which clearing banks are open for non-automated commercial business in the [City of London]]; Confidential Information • means all information of a confidential nature (in any form) which is imparted or disclosed to, or
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Can an advisor be paid for acting for an individual who they know or suspect does not have leave to remain in the UK or is disqualified from working in the UK where there is a possibility that payment could be made from the proceeds of unlawful work?
Can an advisor be paid for acting for an individual who they know or suspect does not have leave to remain in the UK or is disqualified from working in the UK where there is a possibility that payment could be made from the proceeds of unlawful work? This is a complex question and much depends on the specific facts of the case. In general terms, it is unlawful for any person to be involved in the laundering of criminal property—Proceeds of Crime Act 2002 (POCA 2002). This includes acquiring, using, or possessing funds derived from conduct'>criminal conduct (POCA 2002, s 329). For the offence to be committed, the person involved must know or reasonably have suspected that the proceeds were derived from criminal sources. For the purpose of this Q&A it will be assumed that such knowledge or suspicion exists. Funds derived from unlawful working may represent criminal property and, if so, money laundering will occur where an advisor is paid a professional fee from these funds. There are four defences available to the solicitor in these circumstances: • defence 1—they make an authorised disclosure under POCA 2002, s 338 and they have the appropriate consent • defence 2—they intended to make such a disclosure but had a reasonable excuse for not doing so • defence 3—they acquired or used or had possession of the property for adequate consideration, and
What should a personal representative do where beneficiaries will not cooperate with requests to provide information and documentation about the deceased’s estate?
What should a personal representative do where beneficiaries will not cooperate with requests to provide information and documentation about the deceased’s estate? Duty The Administration of Estates Act 1925 (AEA 1925) states that personal representatives (PRs) must collect and get in the deceased’s estate and administer it according to the law and with due diligence. The PRs must identify all the assets in the estate and any liabilities in the estate. This involves, as soon as possible: locating and obtaining the deceased’s title deeds or land certificates, locating and obtaining the deceased’s documents supporting the existence of assets and liabilities, eg account books, life policies, share certificates, cheque books and credit cards, and locating all loose cash. To do this the PRs should send preliminary letters to all those: • holding assets • claiming debts, and • with pertinent knowledge of the deceased’s affairs For further information on the PRs’ duties and powers regarding ascertaining the estate and the preliminary steps to be taken, see Practice Notes: Initial steps to identify assets and liabilities and Securing and protecting assets. Executors must deal with the estate using the powers given to them in the deceased’s Will and all relevant statutory powers. Administrators must deal with the estate using all relevant statutory powers. See Practice Note: Personal representatives—powers, duties and remuneration which sets out the main powers and duties and explains the general rule that
If a beneficiary of an estate brings a claim against the estate which is not a claim under the 1975 Inheritance Act, and which is potentially detrimental to the other beneficiaries, are the personal representatives entitled or obliged to adopt a neutral stance?
If a beneficiary of an estate brings a claim against the estate which is not a claim under the 1975 Inheritance Act, and which is potentially detrimental to the other beneficiaries, are the personal representatives entitled or obliged to adopt a neutral stance? Personal representatives (PRs) should not take sides, but in each particular case the extent of the PRs’ involvement will depend on the nature of the claim which is brought and on whether the PRs are also beneficiaries. Where the PRs are also beneficiaries they may defend a claim in their capacity as beneficiaries rather than as PRs per se. Assuming that the PRs are not beneficiaries or related to beneficiaries and thus have no personal interest in the outcome of the claim, it is the nature of the claim which will inform the nature of their involvement. For example, if the deceased died leaving a Will executed just before death under which he leaves the bulk of his estate to his second child and only a paltry legacy to his eldest child, whereas under the previous Will all his estate was left equally between the two children, the eldest child may well seek to challenge the validity of the Will. That challenge may be on the grounds of incapacity or want of knowledge and approval. In those circumstances, the PRs will bring a claim for the
Where the court has ordered a defendant entitlement to enter judgment on its counterclaim following strike out of the claimant’s claim for non-compliance with directions, how does the defendant seek recovery of its costs (of defending the claim and bringing the counterclaim) in excess of fixed costs, incurred to date?
Where the court has ordered a defendant entitlement to enter judgment on its counterclaim following strike out of the claimant’s claim for non-compliance with directions, how does the defendant seek recovery of its costs (of defending the claim and bringing the counterclaim) in excess of fixed costs, incurred to date? The Q&A does not specify whether the proceedings are subject to the fixed costs regime, or whether the case has been allocated to a different track. Different tracks have different costs rules. In particular, whereas the usual rules about recovering costs apply on the fast track (for example, the ‘loser pays’ principle, and the court’s assessment of reasonableness and proportionality), costs recovery is likely to be limited. In addition, in fast track cases, recoverable trial costs are very limited (CPR 28.2(5)). Given that there should be no difficulty in recovery of costs in excess of fixed costs for a claim to be allocated to the multi-track, it is assumed that the proceedings in this Q&A are allocated to the fast track. The fixed costs regime in CPR 45 applies unless the court orders otherwise (CPR 45.1(1)). The court has wide discretion regarding costs (CPR 44.2). Moreover, it has been established that the discretion provided by CPR 44.2 applies to fixed costs cases (Chapman v Tameside Hospital NHS Foundation Trust). Accordingly, the court can depart from the fixed costs regime
Where a duty of care is owed, can constructive knowledge on the part of the claimant defeat a claim based on breach of the duty? In an alleged professional negligence claim, what are the general principles for determining what would have happened had proper advice been given?
Where a duty of care is owed, can constructive knowledge on the part of the claimant defeat a claim based on breach of the duty? In an alleged professional negligence claim, what are the general principles for determining what would have happened had proper advice been given? Constructive knowledge Constructive knowledge is deemed knowledge of a particular person regardless of whether that person had actual knowledge of the relevant matter. It applies in a number of situations, but commonly where an agent is acting for a principal—the knowledge of the agent, in respect of the matter that is within the scope of authority of that agent, is imputed to the principal. By way of example, a solicitor may act as agent for a client and, depending on the terms of the retainer, the solicitor’s knowledge may be imputed to their client. This is particularly relevant to claims that would otherwise be statute-barred as a result of the operation of the Limitation Act 1980 (see Jacobs v Sesame Ltd). Professional negligence claims Where professional negligence is alleged, the court will consider: First, (a) the scope of the alleged duty: what is that the solicitor was engaged to do and (b) whether or not the solicitor has exercised skill and care in the discharge of that duty. A lawyer owes a duty to give reasonably careful and competent advice to the standard of
Am I allowed to pay or receive a commission under anti-bribery legislation?
Am I allowed to pay or receive a commission under anti-bribery legislation? Please note, this Q&A only considers UK bribery legislation. Payment of commissions We refer you to Practice Note: Commission, which outlines how all commissions constitute the giving of a financial advantage, although they will not necessarily be bribes. The Bribery Act 2010 (BA 2010) has a broad interpretation of what may constitute a bribe. It is described as a 'financial or other advantage' given or received in a business context, which constitutes or induces the improper performance of a relevant function or activity. Performance will be ‘improper’ if it breaches a relevant expectation of good faith or impartiality. The general offences under the BA 2010 therefore will often capture the payment of commission, though this will vary among industry. For example, in the art market, a common practice has been the payment of commission to intermediaries owing a duty of trust to an art collector in return for
Can a discounted CFA be used where a client has legal expense insurance (LEI) so that the usual charge out rate applies if successful, but the LEI rate applies if not?
Can a discounted CFA be used where a client has legal expense insurance (LEI) so that the usual charge out rate applies if successful, but the LEI rate applies if not? What is a DCFA? Most lawyers will be familiar with a ‘pure’ CFA, often referred to as a ‘no win, no fee’ agreement. When acting under a pure CFA, a legal representative will be paid only if a win (as defined in the CFA) occurs. If it does not, no payment will be made for the work done. See subtopic: CFAs and DBAs for further information. A DCFA may be referred to as a ‘no win, lower fee’ agreement. DCFAs include an agreement that the client will pay the legal representative’s fees in full if the case is successful, but, if it is not, the legal representative will be paid a reduced fee. The role of success fees Success fees are intended to ensure that a solicitor’s book of CFA-funded litigation can be run at a nil net loss. In other words, the success fee charged on the successful cases is supposed to cover the base costs which are not chargeable on the unsuccessful cases. Success fees have a role to play in DCFAs for the same reason. However, the success fee calculation is slightly more complex than the usual ‘ready reckoner’ approach as it should take into account only
In what circumstances will an easement acquired by long use bind a purchaser of registered land?
In what circumstances will an easement acquired by long use bind a purchaser of registered land? There are various different ways in which an easement can be created. One such method is by prescription, meaning that it is acquired by virtue of long use. An easement can be acquired by prescription at common law, by lost modern grant or under the Prescription Act 1832. Whichever way the easement is acquired, the use of the land concerned must take place without force, without secrecy and without permission. There is no requirement for an entry in the Land Register to be made for a prescriptive easement (meaning an easement which was acquired by prescription). When an estate in land is first registered, it is not only the estate which becomes vested in the proprietor but also the benefit of all interests subsisting for the benefit of the estate. This rule is provided for by section 11(3) of the Land Registration Act 2002 (LRA 2002) in the case of freehold land and by LRA 2002, s 12(3) in the case of leasehold land. The effect of these provisions is that, after first registration of the estate has taken place, the benefit of any interests which subsist pass to any purchaser
What are the risks faced by the grantee of an option over land in Scotland and how can these be mitigated?
What are the risks faced by the grantee of an option over land in Scotland and how can these be mitigated? Reference is often made to ‘put’ option agreements and ‘call’ option agreements. A call option agreement is one where the buyer (grantee) can call upon the seller (grantor) to sell a property (or part of it) to the grantee. A put option is one in which the landowner can call upon the grantee to purchaser the property, see Practice Note: Options to purchase property—Scotland. When an option over land is granted, the grantee has a contractual right to exercise the powers conferred to them by the option agreement. These powers most commonly involve the right to purchase the land: • at a particular point in time, or • within a certain time-frame at • a price, or • a pricing strategy (such as the market value of the land at the time of purchase) determined at the time the option was agreed. Grantees often pay a substantial fee for the option itself, particularly if the land has the potential to be developed. Sometimes the option to buy will only become available to the grantee on the satisfaction of certain conditions. While the grantee is under no obligation to purchase the property, choosing not to do so, or being prevented from doing so due to the conditions not having been satisfied,
Where a contract contains an express warranty period of ten years from the date of supply and there is no express restriction on when a claim must be notified, could a claimant claim at any time? What is the impact of the Limitation Act 1980 on any such claim?
Where a contract contains an express warranty period of ten years from the date of supply and there is no express restriction on when a claim must be notified, could a claimant claim at any time? What is the impact of the Limitation Act 1980 on any such claim? The research for this Q&A is limited to cover contractual warranties in a supply of goods contract. Claims for defective products In an absence of contractual term, an individual who has been supplied goods can claim for defects to those goods which cause personal injury or damage to property through the Consumer Protection Act 1987 (CPA 1987). Such claims are subject to specific limitation provisions as set out in section 11A of the Limitation Act 1980 (LA 1980). Under LA 1980, s 11A(4), an action for damages for personal injury or loss of or damage to property caused by a defective product is subject to a limitation period of three years from whichever is the later of: • the date on which the cause of action accrued, and • the date of knowledge of the injured person or, in the case of loss of damage to property, the date of knowledge of the claimant or (if earlier) of any person in whom their cause of action was previously vested Note however that under LA 1980, s 11A(3) a claim under CPA 1987 is
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INSOL Europe/Lexis®PSL joint project on the implementation analysis of the Directive (EU) 2019/1023 in the EU Member States—Estonia
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Analysis of DWP response to consultation on draft Pensions Dashboards Regulations 2022
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This week's edition of Construction weekly highlights includes a case in which the Technology and Construction Court (TCC) clarified some of the remaining conflicts between the Housing Grants Construction and Regeneration Act 1996 and the Arbitration Act 1996 (Metropolitan Borough Council of Sefton v Allenbuild), a case in which the TCC considered a contractor’s defences to a claim brought under a Buildmark Cover scheme (National House Building Council v Vascroft Contractors), publication by the British Standards Institution (BSI) of three new standards as part of its Built Environment Competence programme, and analysis of the New Engineering Contract (NEC)’s recently released Secondary Option X29.
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Arbitration weekly highlights—4 August 2022
This week's edition of Arbitration weekly highlights includes: coverage of two decisions from the Commercial Court involving an anti-suit injunction and section 44 of the Arbitration Act 1996 (AA 1996); arbitration-related decisions from courts in Singapore, Luxembourg, and the USA; the publication of the draft guidelines on investment mediation by the UN Commission on International Trade Law (UNCITRAL) Working Group III: Investor-State Dispute Settlement Reform; and other developments related to finance and TMT arbitration. All this, and more, in our weekly highlights.
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