This Practice Note considers claims for damages for breach of statutory duty. For guidance on claims for damages for a negligent breach of duty of care outside a statutory duty, see Practice Notes: • Negligence—when does a duty of care arise? • Negligence—when is the duty of care breached? • Negligence—establishing a duty of care—specific scenarios Breach of statutory duty—nature of liability A claimant who suffers loss or injury in circumstances in which the defendant has been in breach of a statutory provision may sometimes be able to claim damages in tort, even if the situation does not fall within the scope of an existing tort such as negligence. If the statute expressly provides for a claim in damages the position will normally be straightforward. Whether a claim will be available if there is no such provision is said to depend upon the intention of Parliament, which is to be ascertained by construing the statute in question. Since this intention will not be explicit, the courts

Availability of a civil remedy under statute Claims based on a breach of statutory duty are very common and reflect the amount of legislation that exists to regulate the relationships between private individuals and public bodies. Although civil liability for breach of a statutory duty in the context of work has been removed in most cases where the accident occurred on or after 1 October 2013, there remain extensive areas in which a civil remedy for breach of statutory duty is available. Not all statutory duties, however, provide a civil remedy for breach. Some statutes are brought into existence in order to modify or clarify existing common law rights of action. Examples include acts that govern the civil liability of occupiers. The common law rules that regulated the duty of an occupier to its visitor were expressly replaced by the Occupiers' Liability Act 1957 (OLA 1957), making available claims based on breaches of statutory duties. Similarly, the Highways Act 1980 (HiA 1980) provides a remedy for breach of

The duty of care The first step is to determine that a common law duty of care exists between the parties. The next stage is for the claimant to prove that the defendant has breached this duty, ie the defendant’s conduct has fallen below the standard of care required. Although expert evidence may be obtained, whether a duty of care exists is primarily a question of law. For further guidance, see Practice Notes: • Duty of care in personal injury claims • Duty of care and breach in clinical negligence claims The reasonable person test In assessing whether the defendant has breached the duty of care, the court will normally use the reasonable person test, ie what would the reasonable person have done, not done, or have foreseen, in the circumstances of this particular incident. Exactly what the court determines to be reasonable conduct will vary according to the particular circumstances. The relevant factors that the court will consider include: • the magnitude of the risk—see below • state

What is the financial promotion restriction? Under section 21 of the Financial Services and Markets Act 2000 (FSMA 2000), a person (A) must not, in the course of business, communicate an invitation or inducement (communicate includes causing a communication to be made) to engage in investment activity, the entering or offering to enter into an agreement the making or performance of which by either party constitutes a controlled activity, or the exercising of any rights conferred by a controlled investment to acquire a controlled investment. For more information about the financial promotion restriction, see Practice Note: The financial promotion regime—essentials. What are the consequences for breaching of the financial promotion restriction? Where a person breaches the financial promotion restriction, they are guilty of an offence and are liable: • on summary conviction, to imprisonment for up to six months or a fine of up to the statutory maximum or both, or • on conviction on indictment, to imprisonment for up to two years or an unlimited fine or both. For more

Breach of the peace describes actual or threatened violence, or a disturbance causing fear of such harm, and the preventive powers used to stop it.In England and Wales and Northern Ireland, it is a common law concept, not a criminal offence. Case law (R v Howell [1982] QB 416) holds that it occurs where harm is done or likely to be done to a person or, in their presence, property, or a person fears such harm from an imminent disturbance. Police and citizens may arrest without warrant to prevent a breach that is occurring, imminent or likely to be renewed; magistrates may bind over to keep the peace or be of good behaviour.In Scotland, breach of the peace is a common law offence. The test (Smith v Donnelly 2002 JC 65) requires conduct severe enough to cause alarm to ordinary people and threaten serious disturbance. Cases proceed under section 38 Criminal Justice and Licensing (Scotland) Act 2010 (threatening or abusive behaviour).In Ireland, the term is descriptive alongside statutory public order offences (Criminal Justice (Public Order) Act 1994) and peace‑bond orders; Gardaí may intervene to prevent imminent violence.Practically, it underpins protest policing and unlawful arrest claims.

The breach of a duty imposed on a trustee by the trust instrument, by statute or through case law. It is an act or omission that is contrary to a trustee’s duties.

Private Client analysis: The claimant alleged her deceased mother and brother as executor/trustees of her late father’s estate were in breach of trust by failing to invest her late father’s trust fund and by reason of a failure to segregate trust money and their own money and keep records, the executor/trustees were liable to restore the trust fund to her with compound interest. The court held on the facts that the claimant had received more than her fair share of the trust fund and that the executor/trustees had not acted in breach of their obligations. The judgment of His Honour Judge (HHJ) Paul Matthews contains a detailed and careful analysis of the extent of the trustees obligation to segregate trust funds from their own and the formalities that needed to be observed by trustees when dealing with trust monies. Written by Nigel Kinder, senior solicitor at Pardoes Solicitors LLP who acted for the defendant in the case.

Breach of warranty describes a failure to comply with a contractual warranty - a contractual promise that something is, or will be, as stated - without necessarily going to the root of the contract. In commercial and consumer law across England and Wales, Scotland, Northern Ireland and Ireland, a breach of warranty typically gives rise to a right to claim damages, but not (absent contrary agreement) to terminate the contract or reject the goods or services.The concept is recognised and developed through case law and legislation, notably the Sale of Goods Act 1979, the Supply of Goods and Services Act 1982, the Consumer Rights Act 2015 (England and Wales, Scotland, Northern Ireland) and the Sale of Goods and Supply of Services Act 1980 (Ireland), which distinguish between “conditions” and “warranties”.In practice, breach of warranty is central to contract drafting, risk allocation, limitation and exclusion clauses, and insurance claims (including warranty and indemnity insurance). Parties often litigate over whether a term is a condition, warranty or intermediate term, as this classification determines available remedies and commercial leverage. Usage and legal effect are broadly consistent across the UK and Ireland, subject to local statutory frameworks and consumer protection rules.

Dispute Resolution analysis: In a dispute concerning a warranty as to turnover and profit following a business sale, the Court of Appeal has considered the differing consequences of pursuing the damages claim as either a warranty claim (breach of contract) or as a claim for misrepresentation (claim in tort)—the distinction being the different measure of damages in contract and of those in tort. The judgment summarises the applicable principles and provides hypothetical illustrative examples. It also indicates the value of obtaining expert evidence to support a claim, albeit the absence of valuation evidence in this case was not fatal to the recovery of damages on the contractual measure.

1 Introduction 1.1 This document sets out our policy for dealing with breaches of regulatory requirements that apply to our firm. Some of these requirements are imposed by the Solicitors Regulation Authority (SRA), others apply to all businesses. 1.2 Failure to comply with regulatory requirements can have the following consequences: 1.2.1 clients may not receive the level of service that they are entitled to expect, which may result in complaints or negligence claims; 1.2.2 our reputation could be damaged; 1.2.3 the firm or individuals within the firm could be disciplined by the SRA or another regulator, which could lead to fines, disqualification or other sanctions; 1.2.4 the firm or individuals within the firm could be exposed to criminal prosecution. 1.3 We have always taken compliance extremely seriously and will continue to do so. The firm’s policies and procedures are designed to ensure we comply with our regulatory obligations. All staff are required to read and comply with them. A full list of our compliance policies and procedures can be found at Appendix 1. 2 Compliance officers 2.1 We have appointed a compliance officer for legal practice (COLP) and a compliance officer for finance and administration

This Practice Note is based on reporting requirements in the SRA Codes of Conduct and the SRA’s enforcement strategy. For more guidance on the SRA’s regulatory regime, see Practice Notes: • SRA Standards and Regulations • SRA Codes of Conduct for individuals and firms • SRA Accounts Rules—law firms • SRA regulatory regime See also Precedents: Breach reporting policy—law firms and Training materials—breach reporting—law firms. When and what must you report to the SRA The SRA’s threshold for reporting is expressed as ‘serious breach’—see: What is a serious breach? It applies to both individuals and firms regulated by the SRA, as well as to compliance officers. Universal obligation—individuals and firms regulated by the SRA The table below sets out the universal reporting obligations imposed on individuals and firms regulated by the SRA: Obligation Comment Promptly report to the SRA (or another approved regulator, as appropriate), any facts or matters you reasonably believe are capable of amounting to a serious breach of their regulatory arrangements by any person regulated by them (including you). There is no

Corporate Crime analysis: The case concerns the correct standard of proof to be applied in extradition ‘conviction’ cases where the requested person alleges his trial to have been so flagrantly unfair as to amount to a breach of their Article 6 rights under the European Convention on Human Rights (ECHR), and therefore that there is a real risk that their imprisonment will violate their Article 5 rights under the ECHR. The Supreme Court found the Divisional Court to have misdirected itself and to have applied the incorrect standard of proof when it decided the case. The Supreme Court determined that a requested person must prove on the balance of probabilities that the trial was flagrantly unfair, rather than, as accepted by the Divisional Court, that there were substantial grounds for believing that there was a real risk of breach, subject to an exception for cases involving evidence obtained by torture. Written by Sian Priory, barrister at 5 St Andrew’s Hill.