GLOSSARY
Will definition
What does Will mean?
A legal document in which the testator (or testatrix) declares their intention as to what should happen to their estate after their death, and which is executed in accordance with certain legal formalities.
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Equity derivatives—France—Q&A guide
Equity derivatives—France—Q&A guide This Practice Note contains a jurisdiction-specific Q&A guide to equity derivatives in France published as part of the Lexology Getting the Deal Through series by Law Business Research (published: March 2020). Authors: Latham & Watkins LLP—Thomas Vogel; Suzana Sava-Montanari 1. Other than transactions between dealers, what are the most typical types of over-the-counter (OTC) equity derivatives transactions and what are the common uses of these transactions? The market for OTC derivatives transactions in France is well established and equity derivative products are routinely used in the implementation of stake-building transactions, equity price risk hedging strategies and share repurchase schemes. Typical equity derivatives products used by issuers on the French market include (but are not limited to): • call options, put options and total return swaps to hedge equity price risks on a bespoke basis; • funded collar in the context of the leveraged acquisition of a stake in a publicly listed company involving an embedded hedge to the market price of the equity purchase (often on a tranched basis); • unfunded collar in the context of the disposal of a stake in a publicly listed company involving an embedded hedge to the market price of the equity disposal (often on a tranched basis); • prepaid equity forward in the context of share buy-backs involving a forward transaction that is settled on the basis of the discounted volume-weighted average price of
Preparing manual PDF electronic bundles
Preparing manual PDF electronic bundles This Practice Note provides guidance on preparing manual PDF bundles, similar to those required by Practice Direction 51O, the Protocol and Supreme Court Practice Direction 14. The process for uploading documents to specialised trial management software may be different. It should be read in conjunction with Practice Note: Electronic bundles in civil proceedings. With the kind permission of Blake Hawthorne, his ‘Guide to Creating Electronic Appellate Briefs, Blake A. Hawthorne, Supreme Court of Texas’ dated 1 January 2019, has been used as a starting point for this guidance on preparing manual electronic bundles for use in proceedings in England and Wales. How to prepare PDF bundles—five basic steps There are five basic steps to create an electronic bundle which will be as effective and easy to use as possible: • Convert your submissions from the original word processing document, eg Microsoft Word, directly to PDF. Unless it is unavoidable, do not scan a document to create a PDF • Convert any exhibits to PDF. Do not scan exhibits that are available in electronic format, such as judgments, authorities or orders • Combine the submission and any exhibits together into one PDF file • Make any scanned materials searchable using optical character recognition (OCR) software like Adobe Acrobat • Create bookmarks for any documents contained in the exhibit Tools Word processor The primary tool for creating an electronic bundle is
GPhC—Decisions of the Fitness to Practise Committee
GPhC—Decisions of the Fitness to Practise Committee For information on the role, powers and procedures of the Fitness to Practise Committee of the General Pharmaceutical Council (GPhC), see Practice Note: GPhC—Fitness to Practise Committee. Decisions of the Fitness to Practise Committee If the Fitness to Practise Committee (FtPC) determines that the fitness to practise of the person concerned is impaired, it may: • give a warning to the person concerned in connection with any matter arising out of, or related to, the allegation and give a direction that details of the warning be recorded in the Register • give advice to any other person or other body involved in the investigation of the allegation on any issue arising out of, or related to, the allegation • give a direction that the entry in the Register of the person concerned be removed • give a direction that the entry in the Register of the person concerned be suspended, for such period not exceeding 12 months, as may be specified in the direction, or • give a direction that the entry in the Register of the person concerned be conditional upon that person complying, during such period not exceeding three years as may be specified in the direction, with such requirements specified in the direction as the FtPC thinks fit to impose for the protection of the public or otherwise in the
Legislation guide for transactional lawyers—UK Prospectus Regulation
Legislation guide for transactional lawyers—UK Prospectus Regulation This legislation guide lists UK legislative materials relevant to transactional work on debt capital markets prospectuses, including the UK Prospectus Regulation, level 2 measures and statutory instruments (SIs), together with relevant proposals and consultations. No. document Points to note Further guidance Retained EU legislation 1 Retained Regulation (EU) 2017/1129 (UK Prospectus Regulation) The version of the UK Prospectus Regulation accessed by the link in the preceding column in this row incorporates the amendments made by the Prospectus (Amendment etc.) (EU Exit) Regulations 2019, SI 2019/1234 and the Financial Services (Miscellaneous Amendments) (EU Exit) Regulations 2020, SI 2020/628. For an explanation of the onshoring of the EU Prospectus Regulation and level 2 measures under the European Union (Withdrawal) Act 2018 (EU(W)A 2018), and the amendments made by SIs, see Practice Note: Brexit—UK listing and prospectus regime.For detailed information on requirements of the UK Prospectus, including the areas in which it diverges from the EU Prospectus Regulation, see Practice Notes:The Prospectus Regulation—essentials The Prospectus Regulation—is a prospectus required? The Prospectus Regulation—approval of prospectuses and single passport The Prospectus Regulation—prospectus format and contents 2 Commission Delegated Retained Regulation (EU) 2019/980 (UK Prospectus RTS 1) 3 Commission Delegated
Sponsorship
Sponsorship This Practice Note provides an overview of the key elements of a sponsorship deal, including establishing a sponsorship hierarchy for multiple sponsors, exclusivity arrangements, standard and additional rights commonly found in a sponsorship deal, fees and payment by value-in-kind, protection of sponsorship as well as compliance and regulatory issues. Brands are increasingly looking to align themselves with events or content that consumers care about. For this reason, sponsors are increasingly aligning themselves with areas outside of the traditional sports sponsorship model. For example, there has been significant growth in sponsorship of music events and artists, sectors that brands traditionally shied away from due to the myriad of rights owners. English law does not recognise the existence of proprietary rights in a sports (or other) event. It follows that there is no such recognised right as ‘sponsorship rights’ to an event, team or league. The sponsorship rights granted by rights holders to brands do not exist in and of themselves, rather they are created, exploited and protected via a contractual and legal matrix. Types of sponsorship There are many different types of sponsorship opportunities available, including sponsoring: • a team • an individual • an event, or series of events • a venue • content (such as a television programme) Key components of a sponsorship deal Sponsorship hierarchy Sponsorship programmes have developed to form a hierarchical model with the sponsors at the top granted the widest suite
Appeals—Portugal—Q&A guide
Appeals—Portugal—Q&A guide This Practice Note contains a jurisdiction-specific Q&A guide to appeals in Portugal published as part of the Lexology Getting the Deal Through series by Law Business Research (published: April 2021). Authors: Uría Menéndez—Fernando Aguilar de Carvalho; Luís Bertolo Rosa 1. Outline and explain the general structure of your country’s court system as it relates to the commercial appellate process. Portugal's court system is organised in three different levels. There are first instance courts, intermediate appellate courts and the Supreme Court, which is the final appeal court. In certain circumstances – when a party argues that the way in which the court has interpreted and applied certain legal provisions is in breach of the Constitution – the Constitutional Court will also work as an appeal court. In terms of intermediate appeal courts, the national territory is divided into five regions: Lisbon (which also covers the territories of the Azores and Madeira Archipelagos), Oporto, Guimarães, Coimbra and Évora, each one with an intermediate appeal court. The Supreme Court has jurisdiction over the entire national territory. The threshold for the jurisdictions of the first instance and intermediate appeal courts are €5,000 and €30,000, respectively. 2. Are there appellate courts that hear only civil matters? The Supreme Court has civil, criminal and social sections. All the intermediate appeal courts have a civil and a criminal section and will, depending on the level of demand and complexity of the assigned
Tier 1 (Investor): investment requirements for pre-6 November 2014 Rules applicants at indefinite leave to remain
Tier 1 (Investor): investment requirements for pre-6 November 2014 Rules applicants at indefinite leave to remain This Practice Note looks at the eligibility requirements in relation to money and investments that will be relevant for a Tier 1 (Investor) migrant applying for indefinite leave to remain, where their last leave was granted under the pre-6 November 2014 Immigration Rules covering the category and they are applying before 6 April 2022. This includes what investments will qualify (including relevant restrictions), how the qualifying investments should be maintained, and the evidence needed to show that the qualifying investments and, if relevant, any balancing funds have been maintained over the relevant specified continuous period. It should be read in conjunction with Practice Note: Tier 1 (Investor): applying for indefinite leave to remain. The same requirements will apply where an applicant in this situation misses the 6 April 2022 deadline. As this route was closed to any further initial applications on 17 February 2022, through Statement of Changes in Immigration Rules CP 632, in part due to the concerns the route facilitated the transfer of illicitly obtained wealth, extension and settlement applications may face increasingly high levels of scrutiny. For further information, see: LNB News 17/02/2022 76. Investment within three months of the specified date If a person wishes to rely upon the date of first entry after being granted entry clearance,
Acquiring permanent residence early [Archived]
Acquiring permanent residence early [Archived] ARCHIVED: this Practice Note is no longer maintained as it covers the implementation of EU free movement law in the UK prior to IP completion day, on which date domestic legislation implementing EU free movement law was revoked, subject to certain savings and modifications. For further details, including of the relevant savings and the position of CJEU case law, see Practice Note: What does IP completion day mean for Immigration?. The Practice Note has been retained in archived form for historical interest, because EU law as previously implemented in the UK remains relevant in certain limited situations. For historical versions of the Immigration (European Economic Area) Regulations 2016, SI 2016/1052, including immediately prior to revocation, see Legislation.gov.uk. For the ongoing development of EU free movement law in EU Member States, see: Immigration, employment & share incentives (EU Law)—overview. This Practice Note covers the circumstances where PR can be acquired early by European Economic Area (EEA) nationals and their family members residing in the UK under EU free movement law. Throughout this Practice Note the term 'EEA nationals' refers to nationals of the countries in the EEA other than the UK as well as Switzerland, which reflects the definition in the Immigration (European Economic Area) Regulations 2016 (the EEA Regs 2016). PR can be acquired prior to the completion of five years of
Brussels I (recast)—requirements for an effective choice of court agreement (art 25)
Brussels I (recast)—requirements for an effective choice of court agreement (art 25) This Practice Note considers Article 25 of Regulation (EU) 1215/2012, Brussels I (recast) and the requirements that need to be met to show the court there is an effective choice of court agreement between the parties. It provides background information as to the position already adopted by the European Court on such agreements and what changes have been brought into place under Regulation (EU) 1215/2012, Brussels I (recast) and what that might mean in practice. Equivalent wording to Article 25 of Regulation (EU) 1215/2012, Brussels I (recast) was found in its predecessors being Article 17 of the Brussels Convention and Article 23 of Regulation (EC) 44/2001, Brussels I. Cases referenced in this Practice Note include those decided under the convention and regulation as they are relevant to understanding the key principles under Article 25. For general information in relation to choice of court agreements, see Practice Note: Brussels I (recast)—choice of court agreements (art 25). For guidance on the various other jurisdictional regimes that contain provisions regarding jurisdiction agreements, see Practice Notes: • Jurisdiction agreements—introduction • Hague Convention on Choice of Court Agreements—scope • Hague Convention on Choice of Court Agreements—jurisdiction • Jurisdiction agreements—approach of the courts of England and Wales Impact of UK’s departure from the EU Following exit day (ie 31 January 2020), the UK became a third state in
Business and Property Courts—shorter trials scheme
Business and Property Courts—shorter trials scheme This Practice Note provides guidance on the interpretation and application of the relevant provisions of the CPR. Depending on the court in which your matter is proceeding, you may also need to be mindful of additional provisions—see further below. Purpose of the shorter trials scheme This Practice Note gives guidance on the shorter trials scheme (STS) in CPR PD 57AB to claims issued on or after 1 October 2015 in the Business and Property Courts. The scheme is intended to effect resolution of commercial disputes within commercial time frames through streamlining and controlling various case management procedures, including the pre-action procedure, statements of case, costs budgeting, disclosure, factual and expert evidence, interim applications, the trial timetable, cross examination at trial, etc. CPR PD 57AB deals with both the shorter and flexible trials schemes and came into effect on 1 October 2018, following a successful pilot scheme which operated under CPR PD 51N in the Rolls Building only. From 1 October 2018, the STS applies to all Business and Property Courts and to claims issued on or after 1 October 2015 (CPR PD 57AB, para 1.2). The flexible trials scheme (FTS) is also contained in CPR PD 57AB. This Practice Note only considers the STS. For guidance on the FTS, see Practice Note: Business and Property Courts—flexible trials scheme. Where the provisions of
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Specimen statement of issues for a first appointment—financial remedy application
Specimen statement of issues for a first appointment—financial remedy application In the Family Court sitting at [location] [Case No] Between 1 [insert name] Applicant And 2 [ insert name] Respondent Statement of issues for the First Appointment on [date] Issue Applicant’s position Respondent’s position 1. Clean break The applicant contends that there should be a joint lives maintenance order because [insert concise details] The respondent contends that a clean break will be possible because [insert concise details] 2 Identification of assets to be divided Should [ [[identify asset] inherited by the [applicant OR respondent OR ] OR [identify asset] owned by the applicant OR respondent OR prior to the marriage]/ [as appropriate] OR /] be included in the assets to be divided or be ring-fenced? This is a needs case as a result of which ring-fencing is not possibleOr [identify asset] was recently inherited by the applicant from her OR his] parents. The property has not been intermingled with other assets. It should be ring-fenced for the benefit of the applicant This is a needs case as a result of which ring-fencing is not possibleOr [identify asset] was owned by the respondent prior to the marriage and has remained in [her OR his] separate ownership since that date. The needs of the parties can be met without recourse to the property 3. Appropriate division of capital The
Consequences of termination clauses (construction contract)
Termination (consequences) Consequences of termination of a consultant’s appointment 1 Subject to the other provisions of this Agreement and without prejudice to any right of action then accrued to either party on termination the Consultant will be entitled to fees for all Services properly performed and completed at the date of termination of this Agreement. 2 [Upon termination the Employer
Transfer clauses—sale by administrator
Panel 4—Transferor [insert name of the registered proprietor] in administration) (the ‘Transferor’) acting by [any one of] its [joint] administrator [s], [insert name of [first] administrator] (Insolvency Practitioner) of [insert address] [and [insert name of second administrator] (Insolvency Practitioner) of [insert address]] (the ‘Administrator[s]’) Panel 9—Title guarantee The Transferor, being a company in administration, gives no covenants for title whether express or implied by the Law of Property (Miscellaneous Provisions) Act 1994, the Land Registration Act 2002 or otherwise Panel 11—Additional provisions 1 The Administrator[s] [was] [were] appointed [joint] administrator[s] of the affairs, business and property of the Transferor[, with the power to act
Step-in rights and SRA compliance clauses: law firm outsourcing agreement
1 Definitions for Step-in rights and SRA compliance clauses: law firm outsourcing agreement Applicable Laws means: (a) the laws of England and Wales [and [insert other specific applicable laws, eg of other jurisdictions where the Services will be performed]]; (b) any other laws or regulations; (c) any industry codes, policies or guidelines issued by a Regulator as notified to Supplier by Customer from time to time in each case, as these are applicable to the performance of the Services; Confidential Information means any and all confidential information (whether in verbal, written or electronic form), including technical or other information imparted in confidence or disclosed by one party to the other, or otherwise obtained by one party relating to the other’s business, finance or technology, know-how, intellectual property, assets, strategy, products, services, customers, former customers, clients and former clients, including without limitation information relating to any person, firm or organisation associated with that party; Control means that a person owns directly or indirectly more than 50% of the shares or securities of the other person representing the right to vote on all or substantially all matters including the election of directors and ‘Controls’ and ‘Controlled’ shall be interpreted accordingly; Dependencies means the dependencies or requirements in respect of Customer (if any) set
Finance provisions—joint venture shareholders’ agreement
ALTERNATIVE 1: PROVISION FOR FUTURE LOANS BY SHAREHOLDERS Clause 1 Insert a new definition as follows (if not already included): Respective Proportion means, in relation to a Shareholder, the proportion which the number of Shares held by that Shareholder bears to the total number of issued Shares of the Company; Replace clause 9.3 with the following new clauses 9.3 and 9.4: 9.3 In the event that, at any time during the term of this Agreement, any such borrowings are not available or do not satisfy the working capital requirements of the Company as determined by the Board, each of the Shareholders, when requested from time to time, lend to the Company its Respective Proportion of the amount specified by the Board on the terms set out in clause 9.4 provided that: 9.3.1 the maximum principal amount which the Shareholders shall be required to lend under this Agreement (when aggregated with the principal amount of all other loans made by the Shareholders to the Company and still outstanding) is £[insert amount]; 9.3.2 each Shareholder’s obligation to lend pursuant to this clause 9.3 shall be conditional upon the other Shareholder simultaneously fulfilling its obligation pursuant to that clause; and 9.3.3 each Shareholder’s obligation to lend pursuant to this clause 9.3 shall automatically
Clauses—freedom of information
1 Freedom of information and environmental information 1.1 You acknowledge that the Company is subject to the requirements of the Freedom of Information Act 2000 (‘FOIA’)[ and the Envi
Clauses—medical examination, medical report and health screening
1 Medical examinations and reports 1.1 The Employer will have the right at any time[ after you have been absent from work for more than [insert number] working days (whether consecutive or in total) in any [consecutive [enter duration, eg 52-week] period OR sick pay year (which runs from [insert date] to [insert date]] ] to require you to undergo a medical examination by your medical practitioner or an independent medical practitioner selected by the Employer. 1.2 The Employer will usually also ask you to authorise the medical practitioner, as required by law and/or professional guidance:
Settlement agreement additional clauses—resignation from directorship/office
Insert in operative provisions: 1 Resignation from directorship/office 1.1 If you have not already done so, you will on the date of this Agreement immediately resign from all offices held by you in, or on behalf of, the Employer[ and/or any Group Company] by delivering to the Employer a letter of resignation in the form set out in Schedule [enter number, eg 2]. 1.2 You will immediately on request do all and any acts and things as the Employer may require to effect and/or register your resignation under clause 1.1 above and from all other offices, trusteeships or appointments which you hold in connection with or by reason of your employment by the Employer[ and/or any Gro
Clauses—working time and hours of work
1 [ Working time—example 1 1.1 You agree that your average weekly working time may exceed 48 hours and accordingly you 'opt out' of the limit on working time set down by the Working Time Regulations 1998. You may elect to end this 'opt-out' at any time by giving us not less than [seven days' OR three months'] written notice. OR 2 Working time—example 2 2.1 [Your average weekly working time will be determined over [successive 17-week reference periods starting from [[insert date] OR the Commencement Date] OR standard successive 17-week reference periods (each a 'Standard Reference Period') from 1 January to 29 April, 30 April to 26 August and 27 August to 23 December in each year[ (or as notified to you in writing from time to time)] ].] 2.2 [During the period from 24 December to 31 December, the reference period on any day will be the previous period of 17 weeks.] 2.3 [Until you have been employed for 17 weeks, we will average your working time over the period since your employment commenced OR Until you have been employed for a full Standard Reference Period, we will average your working time over the previous 17 weeks' employment].
Sale of a flying freehold clauses
Clauses for the sale of a flying freehold—Form TR1 additional provisions 1 In this transfer 'the Covenantee' means [proprietor of the [upper OR lower] flat] of [insert address]
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On a sale by auction of commercial property using RICS Common Auction Condition 3rd Edition, a special condition requires the buyer to reimburse the seller for the cost of pre-exchange searches undertaken in respect of the property. However, the buyer's solicitor has refused to pay these costs on the ground that the amount of the cost incurred was not included on the front page of the auction. Are there grounds for the buyer to not pay?
On a sale by auction of commercial property using RICS Common Auction Condition 3rd Edition, a special condition requires the buyer to reimburse the seller for the cost of pre-exchange searches undertaken in respect of the property. However, the buyer's solicitor has refused to pay these costs on the ground that the amount of the cost incurred was not included on the front page of the auction. Are there grounds for the buyer to not pay? It is common for property sold at auction to be subject to the RICS Common Auction Conditions (now on the 4th Edition). These are standard contractual terms, and make clear that the general conditions apply to the contract except to the extent that it is varied by special conditions or by an addendum. By condition G1.9, the buyer buys with full knowledge of the documents, whether or not the buyer has read them. This includes the terms of sale. It is also common that additional fees and costs in addition to the sale price may have to be paid by the successful
In a situation where there is a biological parent and a step-parent with parental responsibility (PR), can children's social care make decisions based on the view of one parent, when the one with PR opposes/disagrees with the decision?
In a situation where there is a biological parent and a step-parent with parental responsibility (PR), can children's social care make decisions based on the view of one parent, when the one with PR opposes/disagrees with the decision? Parental responsibility means all the rights, duties, powers, responsibilities and authority which by law a parent or a child has in relation to the child and their property. Both the father and mother will have parental responsibility for the child if they were married to each other at the time of the child’s birth. If not married, the father can hold parental responsibility as a result of being named on the birth certificate or by entering into a parental responsibility agreement with the mother. Similarly, a step-parent may also acquire parental responsibility. In the scenario of this Q&A it is slightly unclear whether the biological parent holds parental responsibility or whether it is simply the step-parent who holds parental responsibility. If both hold parental responsibility, each of them may act alone without the other in meeting that responsibility, but there are certain issues that require the consent of anyone holding parental responsibility. If, for example, two parents hold parental responsibility for a
Can the transferable nil rate band and transferable residence nil rate band be claimed when the first spouse died in 1971?
Can the transferable nil rate band and transferable residence nil rate band be claimed when the first spouse died in 1971? This Q&A considers whether the transferable nil rate band (NRB) and the transferable residence nil rate band (RNRB) are available when the first spouse died in 1971, which is before the introduction of inheritance tax (IHT) on 18 March 1986. Transferable NRB In order to claim the transferable NRB, it is necessary for the individuals to have been married or in a civil partnership at the date of the first death. For spouses, it does not matter when the first death occurs, although the second death must be on or after 9 October 2007. For civil partners, the first death must occur on or after 5 December 2005 (ie the introduction of civil partnerships) and the second death on or after 9 October 2007. As the question refers to a spouse, we have assumed that the individuals concerned were married at the date of the first death. Therefore, assuming that the second spouse died on or after 9 October 2007, the transferable NRB can be claimed even though the first spouse died in 1971. However, there may be evidential issues with making a claim. The regime in force at the date of the first spouse’s death was estate duty. Estate duty included a tax-free amount which, under paragraph
In a situation where trustees wish to terminate a trust but cannot distribute its assets as the sole beneficiary is uncontactable, what can be done to relieve them of their duties?
In a situation where trustees wish to terminate a trust but cannot distribute its assets as the sole beneficiary is uncontactable, what can be done to relieve them of their duties? It is assumed the trust has come to an end and that all that is required is a distribution of its assets. For a general discussion on the duties of trustees, see Practice Note: Trustees—duties. As can be seen, a principal duty is to preserve the asset but it is understandable that trustees in this situation may require relief from this and their other duties where they are unsure when those duties
A tenant of commercial property is in arrears of rent and is holding over under the Landlord and Tenant Act 1954. The landlord is willing to grant a new lease where in addition to the passing rent, separate provision is made for the tenant to pay the rent arrears under the expired lease off by instalments. If the tenant were then to default in paying the rent arrears but keep up payment of the current passing rent, could the landlord then forfeit the lease if arrear rent was reserved as ‘rent’? Is there anything barring such arrangement?
A tenant of commercial property is in arrears of rent and is holding over under the Landlord and Tenant Act 1954. The landlord is willing to grant a new lease where in addition to the passing rent, separate provision is made for the tenant to pay the rent arrears under the expired lease off by instalments. If the tenant were then to default in paying the rent arrears but keep up payment of the current passing rent, could the landlord then forfeit the lease if arrear rent was reserved as ‘rent’? Is there anything barring such arrangement? Forfeiture is the landlord’s express right to re-enter premises and bring a lease to an end, due to a breach of covenant or the occurrence of a specific event detailed in the lease. The lease must contain an express forfeiture clause which allows the landlord to terminate the lease for the alleged breach, and the breach must not have been waived. In the absence of an express provision in the lease, a landlord may only forfeit if there has been a breach by the tenant of an express or implied condition. For further guidance on forfeiture, see Practice Note: •
What obligations does an occupier of land have to a neighbour where Japanese knotweed has spread from their land to neighbouring land?
What obligations does an occupier of land have to a neighbour where Japanese knotweed has spread from their land to neighbouring land? An occupier of land could face liability for the spread of Japanese knotweed to neighbouring land in a number of ways, including: • under section 14 of the Wildlife and Countryside Act 1981 (WCA 1981), which makes it an offence to plant or cause Japanese knotweed to grow • under section 34 of the Environmental Protection Act 1990, which imposes a duty of care on people dealing with controlled waste (Japanese knotweed), to take reasonable steps to keep that waste safe • through a claim for private for private nuisance For more information see our Practice Notes: Japanese knotweed—legal framework and Japanese knotweed—management, which also cover the amendments to the WCA 1981, added by the Infrastructure Act 2015, concerning Japanese knotweed and species control agreements and orders. Private nuisance This Q&A concerns the spread of Japanese knotweed to neighbouring land and so it involves a focus on private law/civil liability principles. Allowing Japanese knotweed to spread to neighbouring land could constitute a private nuisance, which the neighbour may seek a remedy for. Our Practice Note: Private nuisance—general principles explains that private nuisance is concerned with the unlawful
When can a tenant be liable for contaminated land?
When can a tenant be liable for contaminated land? STOP PRESS: The Environmental Permitting (England and Wales) Regulations 2016, SI 2016/1154 come into force on 1 January 2017. The regulations consolidate all of the amendments to the Environmental Permitting (England and Wales) Regulations 2010, SI 2010/675 rather than making any substantive policy changes. We will be updating our content to reflect these changes as soon as possible. Contaminated land regime The contaminated land regime contained in the Environmental Protection Act 1990, Part IIA ( EPA 1990, Pt IIA) places a statutory duty on local authorities to identify 'contaminated land' in their area and to secure remediation. If a site is investigated or designated as contaminated land, the local authority will look first for any Class A 'causers' or 'knowing permitters'. If no Class A persons can be found, the current Class B owner or occupier may be liable. See Practice Note: Contaminated land—who may be liable? Tenant legally excluded as Class B occupier paying a rack rent Where there are no Class A persons and two or more Class B persons have been identified (eg the landlord as owner and the tenant as occupier), the statutory guidance seeks to exclude from liability a Class B person who does not have an interest in the capital value of the land in question. It excludes from liability any Class B person who:
Can a person who has leave as a partner under Appendix FM on the ten-year route switch into the five-year route in-country? If so, must they wait until there are less than 28 days remaining on their current leave?
Can a person who has leave as a partner under Appendix FM on the ten-year route switch into the five-year route in-country? If so, must they wait until there are less than 28 days remaining on their current leave? A person applying under Appendix FM as a partner in-country must meet immigration status requirements. These are set out in the Immigration Rules, Appendix FM, paras E-LTRP.2.1–E-LTRP.2.2. These state: ‘E-LTRP.2.1. The applicant must not be in the UK- (a) as a visitor; or (b) with valid leave granted for a period of 6 months or less, unless that leave is as a fiancé(e) or proposed civil partner, or was granted pending the
What is the procedure in the small claims court for relying on a statement made otherwise than by a person giving oral evidence?
What is the procedure in the small claims court for relying on a statement made otherwise than by a person giving oral evidence? Small claims track—case management Claims on the small claims track are known as small claims and are governed by CPR 27 and CPR PD 27. Parties on the small claims track often act in person (known as litigants in person) and so the case management provisions have been focused and designed to make the dispute resolution process as quick, cheap and straightforward as possible. For further guidance on case management in relation to litigants in person, see Practice Note: Litigants in person—case management and relief from sanctions. The court has a very wide discretion as to the conduct of the proceedings. It is important to be aware that: • many parts of the CPR do not apply to small claims eg CPR 33, which includes provisions on dealing with hearsay evidence which might otherwise apply in these circumstances—see CPR 27.2 for a full list • recoverable costs are very limited The court can adopt any procedure it believes to be fair and appropriate to the dispute. Generally, the strict evidence rules don't apply, evidence does not need to be on oath and the court can limit
A married but non-cohabiting couple are looking to extend their leave under Tier 2 (General). They have not been living at the same address in the UK since 2017 but are in a genuine relationship. What effect will this have on their extension application?
A married but non-cohabiting couple are looking to extend their leave under Tier 2 (General). They have not been living at the same address in the UK since 2017 but are in a genuine relationship. What effect will this have on their extension application? Immigration Rules, Part 8, para 319C sets out the requirements for partners of Tier 2 (General) migrants when applying for leave to remain. These include that: ‘…(d) The marriage or civil partnership, or relationship similar to marriage or civil partnership, must be genuine and subsisting at the time the application is made. (e) The applicant and the Relevant Points Based System Migrant or Appendix W worker must intend to live with the other as their spouse or civil partner, unmarried or same-sex partner throughout the applicant’s stay in the UK.’ Note that, in relation to an extension of stay, this intention to live together requirement will also have been a requirement for their preceding application for leave to remain/entry clearance in the category. The Home Office Policy guidance (version 02/2020) in relation to PBS Dependants states (under the heading ‘Additional evidential requirement for dependants of Main Applicants whose last grant of leave was not in this capacity’) that: ‘…63. If you are applying as a family member of a PBS migrant or Appendix W Worker and your last grant of leave was not as their dependant
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UK Competition law—daily round-up (04/07/2022)
A round-up of UK competition law developments including (amongst other things) the CMA’s decision that Carpenter Co/Recticel NV/SA meets the test for reference to phase 2.
Better choice could cut pension buyout costs by £100bn
Law360: Defined benefit (DB) retirement plans could lower buyout costs by as much as £100bn by offering members a broader range of choices for accessing benefits according to financial services consultancy Hymans Robertson.
EU study into medical AI highlights the key risks and shortcomings of legal frameworks
Life Sciences analysis: Harriet Hanks, senior associate, Andrew Austin, partner, and Victor Garcia Lopez, consultant, at Freshfields Bruckhaus Deringer discuss the new study from the European Parliament Parliamentary Research Service, which examines medical artificial intelligence (AI) and the particular opportunities and risks that it poses. The authors’ clear view is that AI in the healthcare domain poses specific risks that merit separate consideration from the perspective of legal frameworks and allocation of accountability. They also find the current and proposed frameworks lacking when it comes to medical AI.
Brexit highlights—1 July 2022
These Brexit highlights bring you a summary of the latest Brexit news and legislation updates from across a range of LexisNexis® practice areas.
What emerging superfunds mean for booming pension deals
Law360, London: The retirement industry this year is expecting the first UK companies to begin transferring their pension liabilities into a new type of investment fund, issuing a new challenge in the booming market for pensions deals so far dominated by insurance buy-in deals.
The Procurement Bill—selection, exclusion, conflict of interests and debarment
Public Law analysis: On 11 May 2022, the government introduced the Procurement Bill, which seeks to reform the existing rules on public procurement. The Bill underwent its Second Reading on 25 May 2022 and we can expect the Act to come into force sometime next year. In this analysis, Christina Timson of Browne Jacobson LLP will take you through some of the proposed changes on selection, exclusion, conflict of interests and debarment in the procurement process.
EU Competition law—daily round-up (04/07/2022)
A round-up of EU competition law developments, including (amongst other things) the (1) latest EU merger developments and (2) the Council and the European Parliament reaching political accord over new regulation aimed at foreign subsidies.
FTT—debt transfer notice can be issued to a former director of a managed service company (Gradidge v HMRC)
Tax analysis: In Gradidge, the First-tier Tax Tribunal (FTT) dismissed the appeal against a debt transfer notice (DTN) that had been issued to the taxpayer under section 688A of the Income Tax (Earnings and Pensions) Act 2003 (ITEPA 2003) to recover income tax and National Insurance contributions (NICs) that should have been deducted and paid to HMRC via PAYE by the managed service company (MSC) of which the taxpayer had been the sole director and shareholder.
TPR and FCA: pensions consumer journey feedback statement
Pensions analysis: The Financial Conduct Authority (FCA) and The Pensions Regulator (TPR) (together the Regulators) have published a joint feedback statement (FS22/3) following their Call for Input (CFI), which sought views on how they could help consumers make informed decisions leading to better pension saving outcomes. The Regulators’ response to the CFI sets out the consumers pensions ‘journey’, areas of improvement through better communications to savers and enabling good decisions through guidance or regulated advice, prioritising value for money in pension schemes, and targeting ‘harms’ in the consumer journey. The Regulators want firms to consider the needs of consumers and following this statement it will be a case of ‘watching this space’ to keep an eye out for any new regulations or guidance. Riccardo Bruno, associate at Arc Pensions Law, considers the feedback statement and the implications for pension schemes.
Damages—no turning back
IP analysis: The winner in an IP infringement action will normally ask the court for an order for procedures to take place so that a proper level of compensation or restitution can be calculated. There are two different ways in which the money can be calculated, namely an inquiry as to damages, and an account of profits. The two remedies are mutually exclusive. The winner has to opt for one or the other. Gregor Grant of Marks & Clerk, considers what happens if the winner opts for one remedy, then later changes its mind.
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