A patent is lapsed where the renewal fees have not been paid. It is possible to restore a patent after it has lapsed provided the application to restore is made in time.

The purpose of a restoration order is to restore the scheme funding level to the position where it would have been had a poor transaction not been entered into.

THIS PRACTICE NOTE ONLY APPLIES TO DEFINED BENEFIT OCCUPATIONAL PENSION SCHEMES The Pensions Regulator's moral hazard powers The Pensions Act 2004 (PeA 2004) empowered the then newly-formed Pensions Regulator (the Regulator) with a raft of powers. The most innovative and significant new powers were the moral hazard provisions in ss 38–56 of the PeA 2004. The moral hazard powers enable the Regulator to counter attempts designed to avoid responsibility for pension funding obligations and, ultimately, to reduce the exposure of the Pension Protection Fund (PPF). In certain circumstances, the Regulator can even look behind corporate structures to apportion pension liabilities to third parties that are connected to, or associated with, a scheme's sponsoring employer. The Regulator's moral hazard powers may take the form of: • a contribution notice, which requires a specific sum to be paid into a pension scheme • a financial support direction, which requires financial support to be arranged to assist the funding of a scheme, or • a restoration order—see below For further information on contribution notices and financial support directions, see Practice Notes:

Where a party wishes to enforce an order, and the respondent intends to leave the jurisdiction of the court and frustrate enforcement action against them, a writ ne exeat regno, or passport seizure order, may be considered. In children proceedings, such an order may be made where there are concerns as to abduction or securing the return of a child, see also Practice Note: Child abduction—emergency remedies—Passport order. The writ ne exeat regno was described by Mostyn J in Bhura v Bhura as a ‘charming historical relic’ which ‘must be regarded as an anachronism given the availability of the modern form of order [the passport seizure order]’. In Re P (Discharge of Passport Order), Cobb J described a passport seizure order as ‘…a potent order, with significant implications, whose use it seems to me should be tightly controlled’ and therefore such orders should only be made for a finite period of time. Writ ne exeat regno The provisions of section 19(2)(b) of the Senior Courts Act 1981 (SCA 1981) subsume the High Court’s

Restructuring & Insolvency analysis: The case concerned the fall-out from the sale of an accountancy practice, the dispute centring on the availability and extent of the payment of deferred consideration. The respondent had served statutory demands on the two purchasers, who then raised a welter of disputes in order to divert the dispute from the insolvency court to a Part 7 claim. After a heavily contested hearing of the applicants’ application to restrain the presentation of winding-up petitions by the respondent, Deputy ICC Judge Arumugam undertook a common-sense analysis of the applicants’ disputes, and found none of them to be genuine disputes on substantial grounds; indeed, his view was that, even without conducting a mini-trial, they flew in the face of the contemporaneous evidence. Written by Ali Tabari, barrister and mediator at St Philips Chambers.

Restraint of trade describes any contractual restriction on a person’s freedom to carry on a business, profession or employment, such as non-compete, non-solicitation and non-dealing clauses in employment, partnership, shareholder or commercial agreements. In England and Wales, Scotland and Northern Ireland, it is a common law doctrine developed in case law, under which restraints of trade are prima facie void unless they protect a legitimate business interest (for example, confidential information, customer connections or workforce stability) and go no further than is reasonable between the parties and in the public interest. Reasonableness is assessed by reference to scope, duration, geography, and the parties’ bargaining power. In Ireland, similar common law principles apply, informed by Irish case law and constitutional protection of freedom to work and trade. Across all four jurisdictions, restraint of trade issues typically arise in drafting and enforcing restrictive covenants, sale of business agreements, and franchise or distribution contracts. The doctrine is distinct from, but interacts with, statutory competition law, which may separately invalidate anti-competitive restrictions.

Scope of restraint of trade clauses When one participant leaves a joint venture but the joint venture business continues, the remaining participants may be keen to prevent the leaver from taking advantage of any knowledge and contacts it has obtained during its membership of the venture. They may do this by including a clause in their joint venture agreement that prevents the leaver from setting up in competition with the joint venture business. Such a clause typically contains a number of separate components. The leaver usually agrees not to: • carry on a business in competition with the joint venture business within a specified geographical area for a specified period after it has left the business • solicit certain key employees from the joint venture (or from any of the participants) for a specified period • solicit certain customers with which the leaver had contact during its involvement in the joint venture Such restrictions are obviously in restraint of trade, and they are thus unenforceable unless they protect a legitimate business interest and

This Practice Note examines the doctrine of restraint of trade and lawful exceptions to it in the employment context. It considers when the doctrine will apply and looks at examples of indirect restrictions or covenants, and payments made under them (eg pensions, profit-share, bonus, commission, training costs, retention bonuses, garden leave and share options), and their treatment by the courts. It also considers when a post-termination restriction (ie restrictive covenant) will be lawful. It is a basic principle of common law that an individual should be free to follow their trade or calling when, where and in what manner they wish. Lord Macnaghten in Nordenfelt stated: ‘The public have an interest in every person’s carrying on his trade freely: so has the individual. All interference with individual liberty of action in trading, and all restraints of trade of themselves, if there is nothing more, are contrary to public policy, and therefore void.’ The starting point when considering post-termination restrictions is therefore that any restraint of trade is unlawful unless it falls within one of a number

Commercial analysis: In Peninsula Securities Ltd v Dunnes Stores (Bangor) Ltd, the Supreme Court departed from the ‘pre-existing freedom’ test of restraint of trade established in Esso Petroleum, replacing it with the ‘trading society’ approach. The crux of the new approach is whether the restrictive covenants in question have become part of the accepted machinery of a type of transaction which is generally considered acceptable and necessary. This is a significant departure from Esso Petroleum which will need to be considered in every current and future restraint of trade claim. Written by Kristina Lukacova, barrister, at Monckton Chambers.

Corporate Crime analysis: The case raises issues of principle as to the scope of living and legal expenditure which should be permitted by restraint orders granted pursuant to section 41 of the Proceeds of Crime Act 2002 (POCA 2002). The court provided a non-exhaustive list of factors which would be potentially relevant in assessing the reasonableness of any living expenses. The court also held that the ‘other assets’ principle applies to restraint orders and that the defendant bears the evidential burden in relation to the unavailability of other assets. The court finally held that while POCA 2002, s 41(4) contains an absolute prohibition on permitting expenditure on ‘legal expenses related to the offence’ it provides no bar to permitting reasonable legal expenditure in civil proceedings merely because they engage in whole or in part the same factual inquiry as will be engaged in the trial of the offence which gives rise to the restraint order. Written by James Lake, barrister at St Pauls Chambers and counsel to the CPS, led by Kennedy Talbot QC, 33 Chancery Lane.

A restraint order is an order made by the Crown Court the Proceeds of Crime Act 2002 (POCA 2002), s 41 and such an order prohibits any person from dealing with any realisable property which he holds.

What is a restraint order? A restraint order is a preventive measure imposed in support of any confiscation order that may be or has been made. It is an instrument of statute, provided for in section 40 of the Proceeds of Crime Act 2002 (POCA 2002). POCA 2002, s 40 (in providing for restraint orders) gives an investigator or prosecutor the pre-emptive right to restrain a person's assets, where that person is under suspicion/investigation in respect of an acquisitive offence, and even before that person has been arrested for the suspected offence. A restraint order under POCA 2002 has the effect of freezing specified and yet to be identified property in order to preserve the assets considered necessary to meet a confiscation order following prosecution and conviction (see below: Legislative steer under POCA 2002, s 69). Such an order prohibits any specified person from dealing with the property in question, including third parties who hold property in which a suspect or defendant is considered to have an interest. A restraint order affects