Any infringement of EU law by a Member State will impair the effectiveness of EU law. Moreover, infringements will also have consequences for the non-compliant Member State which may be held accountable, at the EU level, by the European Commission and Court of Justice. Individuals may also commence proceedings in the domestic courts against the Member State for any infringement of EU law which restricts their rights. Infringements of EU law can arise in several different ways: • complete failure to implement an EU measure, eg failure to transpose a Directive by the end of the transposition period provided for within the Directive (see Francovich v Italian State) • incorrect transposition of a Directive by a Member State (see R v Secretary of State for Transport, ex parte Factortame) • a failure by a Member State to adapt existing legislation to comply with the requirements of an EU measure (see Commission v Germany (Beer Purity) and Factortame III & Brasserie du Pecheur) • an administrative failure by

Failure to advise on legal aid eligibility may amount to negligence, even where a firm does not carry out legal aid work, and a client’s potential eligibility for legal aid must be considered at the outset of the case. In David Truex Solicitor (a firm) v Kitchin, the court found, in relation to costs, that the client had not been advised about the availability of legal aid at the earliest opportunity. It was emphasised that a solicitor must consider eligibility at the outset. The client was entitled to claim back all monies paid to the solicitors in fees, save for a small sum paid for the initial conference. See Practice Note: Taking initial instructions from family clients. Practitioners must consider and take account of their client’s attributes, needs and circumstances. For further guidance, see Practice Note: The Solicitors Regulation Authority (SRA) regime for family lawyers. Legal aid is only available in very limited circumstances for family cases as a result of the reforms introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA 2012).

The parties to a marriage or civil partnership cannot contract out of the court’s jurisdiction to make orders for financial provision on divorce or dissolution. However, the existence of a post-nuptial, maintenance or separation agreement may have a persuasive or even decisive influence on the outcome of either party’s application for a financial remedy, depending on the precise circumstances surrounding the agreement. The Supreme Court in Radmacher (formerly Granatino) v Granatino did not accept that there is necessarily a material difference between a pre-nuptial agreement and a separation agreement and found that the court is entitled to overrule (or uphold) the agreement in either case. See also Practice Note: Implications of pre-nuptial agreements within proceedings for financial provision. The agreement may be taken into consideration as either part of all the circumstances of the case, or as conduct that it would be inequitable to disregard. The court must have regard to whether the terms of the agreement are 'fair', see: The impact of Radmacher. Types of agreements Maintenance

This Practice Note details the court’s approach to pre-nuptial or pre-marital agreements and sets out relevant case law both prior to and following the Supreme Court decision in Radmacher (formerly Granatino) v Granatino. It also considers the Law Commission’s report on matrimonial property, needs and agreements and the concept of qualifying nuptial agreements. See also Practice Notes: • Marital and civil partnership agreements—disclosure • Marital and civil partnership agreements—independent legal advice • Marital and civil partnership agreements—drafting and formalities • Marital and civil partnership agreements—international aspects What is a pre-nuptial agreement? A pre-nuptial (or pre-civil partnership) agreement is formed between the parties to an intended marriage or civil partnership and seeks to regulate their affairs in the event that their relationship ends. For the majority, financial arrangements will be the main focus of such agreements, but the parties may also agree in what jurisdiction their divorce or dissolution will proceed. Pre-nuptial agreements are not formally binding in England and Wales, but they have been regarded by the courts as persuasive

Environment analysis: On 19 September 2024, a report prepared by Jacobs UK Ltd in July 2023 for the Environment Agency regarding Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS) was published following a request made under the Environmental Information Regulations 2004. Keith Davidson, partner at Irwin Mitchell and a member of the PFAS Working Group for the Chartered Institution of Water and Environmental Management, comments on the implications of the report.

Energy analysis: On 22 February 2024, the UK government announced its intention to withdraw from the Energy Charter Treaty (ECT). Alejandro Garcia and Mark McMahon examine some of the potential implications of this development.

This Practice Note provides guidance on the implementation and enforcement of financial orders made in family proceedings where one of the parties has died. It considers the effect of the death of a party on applications and secured and unsecured periodical payments, lump sum orders, property adjustment orders and pensions orders. If one of the parties dies before proceedings for divorce/dissolution have been commenced, the parties remain married/in a civil partnership and the estate of the deceased will devolve in accordance with their will or the law of intestacy. A claim for a financial order is personal to the parties to the marriage/civil partnership and does not survive death. If either party dies before the application under the Matrimonial Causes Act 1973 (MCA 1973) or Civil Partnership Act 2004 (CPA 2004) for financial provision or property adjustment has been made, the court will not have jurisdiction to make a financial order. If either party dies before financial proceedings are determined, the court will likewise be unable to make

Information Law analysis: Eleonor Duhs, Partner and Head of Data and Privacy at Bates Wells, considers the impact of the Retained EU Law (Revocation and Reform) Act 2023 (REUL(RR)A 2023) for data protection lawyers.

When a young person reaches 18, parental responsibility ends. A parent does not automatically have legal authority to manage the young adult’s property, finances or benefit claim. The appropriate arrangement will depend on the person’s decision-making capacity, the assets involved and the particular benefit or financial provider.. Many parents may have diligently saved money for their children’s future only to find that at 18 this money will cause their child to lose state benefits until their savings fall below the capital limits. Managing benefits and other assets There are two ways that parents can continue to assist their child to claim any state benefits that they may be entitled to. The first is to seek to be registered as an appointee just to manage benefits and this is most suitable when the child does not have savings or other assets that require management. Where an adult lacks capacity to manage property and financial affairs beyond benefits, an application to the Court of Protection for a property and affairs deputyship may be appropriate.

In Scally v Southern Health and Social Services Board, the House of Lords held an employer has an implied obligation to draw its employees’ attention to a contractual right so that they may benefit from it.

There are three different ways by which the creation of an easement can be implied at common law: • necessity • intended use • the rule in Wheeldon v Burrows Note that easements may also be implied by statute under section 62 of the Law of Property Act 1925 (LPA 1925); for further guidance, see Practice Note: Easements—LPA 1925, s 62 and permissions. The implied grant of an easement at common law arises out of an express disposal of the servient or dominant tenement (or the simultaneous disposition of both). An easement can only be implied where both the dominant and servient tenements have been in common ownership. An implied easement can arise on the grant of a lease in the same circumstances as on a transfer or conveyance, but it is limited in time to the actual continuance of the lease. In the interests of simplicity, the discussion that follows in the remainder of this Practice Note will refer solely to the scenario of a sale. The right claimed must be capable of forming the

Arbitration analysis: His Honour Judge Eyre QC, sitting as a Judge of the High Court, granted a stay of court proceedings in favour of arbitration under section 9 of the Arbitration Act 1996 (AA 1996) in a dispute over the payment of agency fees related to the transfer of a professional footballer. The judge found a vertical contract between the first claimant and the Football Association (FA) and that the first claimant had acceded to the FA’s rules (the Rules). The court went on to find that the dealings between the first claimant and the defendant gave rise to an implied horizontal agreement which would be bound by the Rules, and in particular Rule K, which operated as an arbitration agreement.