The incorporation of client-specified non-financial corporate or societal behaviours into the investment decision process. These tend to be grouped under environmental, social and corporate governance (‘ESG’) issues.

This Practice Note considers Chapter 5 of the Financial Conduct Authority’s (FCA) Consumer Credit sourcebook (CONC 5), which contains rules and guidance on responsible lending, including creditworthiness assessments before entering into an agreement and conduct of business requirements for credit brokering. Background Creditworthiness comprises credit risk (to the firm) and affordability (for the customer). While firms typically have strong commercial incentives to assess credit risk, they may have less incentive to assess whether credit is affordable and whether it may adversely affect the customer’s wider financial position, particularly where the customer remains profitable. CONC 5 therefore require firms to make a reasonable creditworthiness assessment that considers both the likeliness of repayment and whether repayments can be made sustainably, without significant adverse impact on the customer’s wider financial situation. The FCA’s rules have been designed to not be too prescriptive, as this could have harmful unintended consequences, including for the cost and availability of credit. Instead, the FCA expects a proportionate approach, reflecting the size, cost and risks of the credit and the likelihood of customer harm. For

In the case of a security guard who works a shift in excess of 6 hours in length, (1) the specific exemption, relating to security and surveillance activities, which allows the employer not to provide a 20-minute rest break during the shift, (a) does not apply in every case where the employer is obliged to ensure that one worker or another is permanently present on site, (b) will only apply (i) to a worker whose own work pattern requires that particular worker to be permanently present throughout his shift, and (ii) even in those cases, only where the employer can show there were objective reasons why a full normal rest break could not have been provided to him, (2) although it will always be possible to provide a full normal rest break to all workers, if money were no object, by hiring extra security guards, if the employer can show that any significant additional cost could have undermined its ability to secure the contract at all and would have threatened the jobs of the security officers or their pay, this factor can provide an objective reason allowing the exemption to apply, and (3) where the exemption does apply, and hence the employer is obliged instead to provide an 'equivalent period of compensatory rest', this alternative requirement will be satisfied if the employer provides, at an alternative time, a break from work which lasts for at least 20 minutes, according to the Court of Appeal in Hughes v Corps of Commissionaires Management.

Dispute Resolution analysis: The Court of Appeal upheld a decision to refuse a strike out/reverse summary judgment application. The Court of Appeal summarised the pre-existing case law on abuse of process in situations where a second set of proceedings covered the same factual ground as an earlier set of proceedings not between the same parties. Lord Justice Flaux, delivering the lead judgment, considered the application of the two-limb test set out in Secretary of State for Trade and Industry v Bairstow, and applied the second limb of the test to the specific facts of the case. Coulson LJ agreed with Flaux LJ, and added further analysis as regards the balance of unfairness in this dispute. Emphasis was laid on the relevance of prior procedural history when considering abuse of process and whether the litigation had an improper collateral purpose. Written by Angharad Parry, barrister, at Twenty Essex.

PI & Clinical Negligence analysis: In BS (a child proceeding by his mother and litigation friend) v Greene King Brewing and Retailing Ltd, Oxford County Court substantially reduced solicitor and own client costs, a CFA success fee, and disallowed an ATE premium in a low-risk child personal injury claim. District Judge Lumb reaffirmed that the 25% cap on deductions from damages is a ceiling, not a default entitlement, and that success fees must reflect genuine litigation risk rather than routine assumptions. The decision emphasises that courts will closely scrutinise funding arrangements, proportionality of costs, and the justification for ATE insurance in straightforward infant claims, particularly where liability is effectively admitted and adverse costs risk is negligible. Produced in partnership with Matthew Sherwood of No5 Barrister’s Chambers.

HMRC has announced that restaurant owner Yong Hong Lu has been ordered to hand over £1.2m within three months or face an extra seven-and-a-half years in jail. Lu laundered money stolen by his wife Jun Khoo and business partner Jing Fu, who were both sentenced for VAT fraud in May 2019 after it was found that they used an off-the-books card machine at restaurant to steal £180,000. Lu was jailed for two years, Khoo for three years and nine months, and Fu for seven months, suspended for two years. In addition, Fu has been ordered to pay back £50,000, and Khoo £15,000, within three months or both face extra jail time of nine months and will still be required to pay back the money.

Restitution is concerned with reversing one party’s unfair or unjust benefit at the expense of another party. The purpose of a claim of restitution, therefore, is not to compensate the claimant for a loss but to deprive the defendant of a benefit.

This Practice Note covers restitution and deprivation orders following criminal conviction under the Sentencing Act 2020 (SA 2020). It explains the power to order restitution of stolen goods to victims in criminal proceedings and how to appeal a restitution order. The Practice Note also explains the power of the courts to order the forfeiture of property connected with the commission of an offence by making a deprivation order, the procedure for making a deprivation order and the effect of a deprivation order. Restitution orders A restitution order enables the court to restore to a victim of crime, the goods, or the value of goods, that have been stolen or otherwise unlawfully taken from the victim, out of money found in the offender's possession when they were arrested. The magistrates’ court or the Crown Court before which a defendant is convicted may, on conviction, make an order for the restitution of goods. The court can make a restitution order on its own motion or following application by the prosecutor. Such an

As summarised in: Unjust enrichment and restitution—overview, restitution is concerned with reversing one party’s unfair or unjust benefit obtained at the expense of another party. Practice Note: Unjust enrichment—elements of the claim sets out the key requirements when bringing a claim for unjust enrichment. It is not a prerequisite to a claim for unjust enrichment that the defendant must have acted in a wrongful way, but that their retention of the gain they have obtained at the claimant’s expense is unjust. This may be, eg, where the claimant mistakenly made a payment to the defendant through no wrongful act on the part of the defendant. Practice Note: Unjust enrichment—defences includes, among available defences, the defence that the defendant has changed their position as a result of the enrichment or that the defendant is a bona fide purchaser for good value, itself having given good consideration for that which it has received, even if this has been at the claimant’s expense. However, there are other claims for restitution which are predicated on some element of wrongdoing

A company may be restored to the register by court order or by the administrative restoration procedure. See also restoration by court order.

When a company has been struck off it may be possible to make an application to the court to restore it to the register. There are many reasons for restoring a company to the register, including (1) to enable a claim to be brought against the company, (2) to deal with property which the company still owned when it was struck off and dissolved, which has now vested as bona vacantia, and (3) where the company was struck off by the Registrar whilst the it was still carrying on business. Where a company has been struck off the register at the instigation of the Registrar of Companies pursuant to CA 2006, ss 1000 or 1001, the applicant should consider whether or not the company could be restored using the simpler and quicker administrative restoration route instead of the court procedure.

This Practice Note summarises the procedure to restore a limited liability partnership to the register by way of application to the court. Why restore an LLP to the register? When a limited liability partnership (LLP) has been struck off, it may be possible to make an application to the court for an order to restore it to the register. There are many reasons for restoring an LLP to the register, including: • to enable a claim to be brought against the LLP • to deal with property which the LLP still owned when it was struck off and dissolved, which has now vested as bona vacantia, and • that the LLP was struck off by the Registrar while the LLP was still carrying on business Application of CA 2006 to LLPs An LLP is a corporate body formed under the Limited Liability Partnerships Act 2000 (LLPA). The majority of law applicable to LLPs is actually modified company law rather than partnership law (see Practice Note: The nature