Substantive Law

This practice note explains the elements needed to establish adverse possession: factual possession and intention to possess. It also links to two practice notes on the procedure for claiming title to land by adverse possession: Adverse possession and the Land Registration Act 2002. This explains the regime for adverse possession in relation to registered land under the Land Registration Act 2002 (LRA 2002), which came into force on 13 October 2003. Adverse possession before the Land Registration Act 2002. This explains the regime for adverse possession as it used to apply to both registered and unregistered land, and which will continue to apply to unregistered land.   The law on adverse possession as it stood before the LRA 2002, continues to apply to registered land where the possession relied upon is for a period of at least 12 years ending before 13 October 2003.

This note addresses the role of alternative dispute resolution (ADR) in the context of the public sector and judicial review proceedings, and the relationship between ADR and the government's Dispute Resolution Commitment (DRC).

This Practice note provides an overview of the money laundering regime that applies to lawyers pursuant to the Money Laundering Regulations 2007 (2007 Regulations). The 2007 Regulations came into force on 15 December 2007 and replace the Money Laundering Regulations 2003 (2003 Regulations). They bring the 2005 Directive on money laundering into effect in the UK. The 2007 Regulations introduce new requirements and vary requirements that were in the 2003 Regulations. In particular, the 2007 Regulations require that: The lawyer is able to identify the beneficial owner of client trusts, companies and partnerships. The lawyer applies customer due diligence measures and monitors client activities according to a risk-based approach, applying less stringent procedures for low risk situations and more stringent procedures in higher risk situations. Training for staff is both regular and covers terrorist financing issues. Lawyers are also to have regard to the Law Society's anti-money laundering practice note published on 6 October 2011, and the Solicitors Regulation Authority's warning cards on money laundering (April 2009), property fraud (April 2009) and bogus law firms and identity theft (March 2012).   Property lawyers should also take account of the joint Land Registry and Law Society practice note on property and registration fraud (September 2010), and the Law Society's note on mortgage fraud (October 2011).

A note which considers: On whom should a break notice be served. The best approach to serving a notice if there is uncertainty about the correct recipient. In what circumstances notices should be served on managing agents.

This note considers how criminal liability for offences under the Bribery Act 2010 may attach to companies.

This note explains what principles the Serious Fraud Office (SFO) must apply when making decisions about how to deal with cases of suspected criminal activity. In particular, the note examines the various guidelines the SFO must apply, particularly with regard to the Bribery Act 2010.

This note explains the purpose of a statement of ethics (or anti-corruption statement) and how it might best be used in the context of the Bribery Act 2010, particularly in relation to implementing adequate procedures to prevent bribery and demonstrating a top level commitment to doing so. This note accompanies Standard document, Bribery Act 2010: sample statement of ethics.

A practice note about the reform of the law on bribery in the UK.  This note has now been replaced by a new resource: Practice note, Bribery Act 2010, detailing the Bribery Bill which was introduced into parliament in November 2009 and received Royal Assent as the Bribery Act 2010 in April 2010.

A note on the criteria that must be satisfied for a tenant of a business lease to have security of tenure from the Landlord and Tenant Act 1954 (LTA 1954).

An overview of the civil litigation measures available to rights-holders when tackling counterfeiting such as prohibitory injunctions, freezing orders, disclosure orders and search orders.  

An outline of the requirements for claims in negligence considering the tort of negligence and actions for breach of a duty of care in contract. This note addresses issues such as causation, foreseeability, pure economic loss, contributory negligence and mitigation.

The civil wrong of bribery is concerned with payments made to agents without their principals' knowledge or consent. This note considers the elements of the cause of action of bribery, the implications of a payment being classified as a bribe, the relationship with fiduciary duties, defences and remedies. It also considers the situation where it is the agent who is doing the bribing. It is part of a series of practice notes examining different aspects of commercial fraud.

A table that shows when each section of the Companies Act 1985 (1985 Act) was repealed by the Companies Act 2006 (2006 Act). To check when a section of the 2006 Act came into force, see Practice note, Companies Act 2006: When did it come into force?. For a table identifying those provisions of the 1985 Act that were repealed or re-enacted and their section number(s) in the 2006 Act, see Companies Act 2006: Table of destinations. For background information and materials on the 2006 Act, see Practice note, Companies Act 2006: materials.

GC100 paper published 7 February 2007 setting out the Group's view on best practice guidelines for compliance with the new law. This document is only available in MS Word format. Click here to view it.

This note explains what is meant by constitutional legislation in the UK. It discusses: The traditional view of the constitution as a body of law and conventions. The High Court's recognition of a separate class of statute in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin). Constitutional legislation post-Thoburn. How constitutional legislation can be distinguished from prerogative legislation and embedded legislation.

An outline of the ways in which contractual rights may be transferred to third parties by means of assignment, and the rule against assigning the burden, or obligations, of a contract.

A note outlining the rules governing the capacity of an organisation or individual to contract.

An outline of the classification of contract terms as conditions, warranties and intermediate or innominate terms.

A note considering the use of entire agreement clauses to prevent statements or representations that are not set out in a written agreement from having contractual force. It also considers the use of such clauses to restrict liability for claims based on misrepresentation

A note outlining the use of force majeure clauses.

A note outlining the rules governing the doctrine of frustration.

A note outlining the rules that may make a contract void or unenforceable, on grounds such as illegality or public policy, or voidable for duress or undue influence.

An outline of the way in which contractual rights and obligations may be transferred to third parties by means of novation.

A practice note explaining when and how the court will rectify a document or use construction to correct a mistake and reflect the terms agreed.

An outline of the way in which performance of contractual obligations may be transferred to a third party by means of a subcontract.

A note on the law of contributory negligence and contribution. It sets out the general principles, the types of claim in which contributory negligence can be pleaded, and the requirements for a claim for contribution under the Civil Liability (Contribution) Act 1978.

A note discussing the court procedure under CPR 55 for obtaining possession of property occupied for residential purposes. The note looks at: Common types of claim where this procedure should be followed. Protection from eviction. The standard procedure under CPR 55. The accelerated procedure under CPR 55. Enforcing a possession order.

This practice note explains when an individual may claim damages in a judicial review challenging the lawfulness of a public body's action. It discusses the procedural issues that may arise in such a claim and the approach that the Administrative Court may take. Although there is currently no right in law to compensate indviduals who have sustained a loss because of the unlawful administrative actions of a public body, the note discusses the consultation proposals for reform that were put forward (but not pursued) by the Law Commission. 

This practice note considers the mandatory and discretionary exclusion of contractors from competing for public contracts if they have been convicted of bribery or corruption.  The note focuses on: Regulation 23 of the Public Contracts Regulations 2006 (SI 2006/5). The coming into force of the Bribery Act 2010. The potential impact of a conviction under section 7 of the Bribery Act 2010.

A practical guide for solicitors who are instructed to defend a claim in negligence against a professional. It covers the following stages of a claim: pre-action issues (including the professional negligence pre-action protocol), evidence, privilege, and settlement. As many professionals have professional indemnity insurance, the note covers some of the issues that may arise when acting for either the insurer or an insured (or both).

A note on how the court will determine the terms of a renewal lease under the Landlord and Tenant Act 1954 in the event that the parties cannot agree.

A note on what premises a landlord must offer to sell to the tenants under the Landlord and Tenant Act 1987.

A note on the increasing trend in common law for decision-makers to give reasons, although there is not a general right for reasons to be given in administrative law decisions. The note discusses the cases in which the courts have imposed a duty to give reasons on a decision-maker, which are based on the public law proposition that decision-makers must act fairly, rationally and for proper law purposes.

A summary of the key practical and legal effects and restrictions faced by an undischarged bankrupt following the making of a bankruptcy order against him.

A note on the right to collective enfranchisement and the right to an individual lease extension under the Leasehold Reform, Housing and Urban Development Act 1993, as amended by the Housing Act 1996 and the Commonhold and Leasehold Reform Act 2002.

A note on environmental judicial review, including common grounds of challenge, remedies and a summary of practice and procedure.

An outline of the EU legislative process and its interpretation in the UK.

A note on following the procedures for excluding security of tenure under the Landlord and Tenant Act 1954 (LTA 1954) when the lease is to be granted under an option agreement that allows the beneficiary of the option to nominate another party to take the lease in its place.

The note discusses the three devolved legislatures in the UK and the extent to which devolution has introduced new layers of complexity to the UK statute book. The note covers: The extent and application of the three jurisdictions within the UK. How Westminster legislation extends to Scotland, Northern Ireland and Wales.

In this practice note Jane Tuckley, partner, and Nigel Barratt, Director of Research, from Travers Smith LLP's Financial Services and Markets department, outline the complaints handling procedures of the Financial Ombudsman Service (FOS). For an overview of the FOS' statutory framework, constitutional issues and funding, see Practice note, Financial Ombudsman Service: statutory framework, constitution and funding. For a description of the three jurisdictions comprising the FOS scheme, see Practice note, Financial Ombudsman Service: jurisdiction. This practice note is part of a series of practice notes written by Travers Smith LLP on enforcement and redress topics. Travers Smith has also written a number of practice notes outlining the FCA's disciplinary and enforcement powers. For more information, see Practice note, FCA enforcement regime: overview.

In this practice note Jane Tuckley, partner, and Nigel Barratt, Director of Research, from Travers Smith LLP's Financial Services and Markets department, outline the statutory framework under which the Financial Ombudsman Service (FOS) is established and operates. They also consider constitutional matters for the FOS, and the funding of the FOS. For a description of the three jurisdictions comprising the FOS scheme, see Practice note, Financial Ombudsman Service: jurisdiction. For an overview of the FOS' complaint handling procedures, see Practice note, Financial Ombudsman Service: complaint handling procedures. This note is part of a series of practice notes written by Travers Smith LLP on enforcement and redress topics. Travers Smith has also written a number of practice notes outlining the FCA's disciplinary and enforcement powers. For more information, see Practice note, FCA enforcement regime: overview.

This practice note explains the various doctrines and principles concerned with insurance, including: What constitutes an insurable interest. Subrogation. Joint insurance. Double insurance. Noting. For information about insurance as it relates to commercial property, see Practice note, Property insurance.

A practice note discussing whether the principle in Re Hastings-Bass [1974]  EWCA Civ 13 still exists following the Court of Appeal decision in Pitt and another v Holt and another; Futter and another v Futter and others [2011] EWCA Civ 197. It explains the effect of this decision, against which permission to appeal has been granted and which may not be followed in offshore trust jurisdictions. It describes how the principle was applied before the decision, with examples of situations in which it was used, cases in which it was relied on to avoid unexpected tax consequences and cases on the limits of the principle. The author is updating this practice note to take into account the Supreme Court decision in Pitt v Holt and Futter v Futter (see Legal update, Hastings-Bass: HMRC wins in Futter but loses Pitt v Holt on mistake (Supreme Court)).  To view Dakis Hagen's profile, click here.

A practice note explaining the "decline curve" of a business, giving guidance on how to get the information to assess how serious a business' difficulties are, and providing an overview of what insolvency means and how to react to it.

An outline of the Human Rights Act 1998 focusing on the Convention rights most likely to be involved in claims concerning property.

A guide to directors' duties and potential liabilities in relation to companies in financial difficulties, including the directors' disqualification regime. This note contains a link to a detailed note on the fiduciary duties of directors of companies that are insolvent or near insolvent under United States law.

A well drafted contract will have a governing law clause which determines the substantive law that will be applied to work out the rights and obligations of the parties to the contract. Generally, the English courts will uphold an express choice of law as a valid choice. However, while an express choice of law in relation to contractual obligations cannot be overturned, significant challenges can be made to it under the Rome Convention or the Rome I Regulation, which can have the effect of modifying the applicable law. This note looks at the three situations in which the express choice of law in respect of contractual obligations can be modified under the Rome Convention or the Rome I Regulation under English law. This note does not consider the effectiveness of a governing law clause covering non-contractual obligations, and the challenges that may be made to such a clause. For a detailed discussion of the issues which arise in that context, see Practice note, Rome II: an outline of the key provisions.

A note on whether a notice served by a landlord under section 6 of the Law of Distress Amendment Act 1908 (LDAA 1908) is caught by the moratorium imposed when a tenant company goes into administration.

A practice note covering the circumstances when a challenge to a recent or imminent procurement decision can be made by way of a claim for judicial review under Part 54 of the Civil Procedure Rules instead of a claim under the Public Contracts Regulations 2006 (SI 2006/5).

An note on what issues the landlord should consider before it serves section 17 notices on more than one former tenant or former guarantor under the Landlord and Tenant Covenants Act 1995.

A note on the landlord's ability to distrain for rent arrears if the tenant has failed to register the lease.

A note on the public law concept of legitimate expectation and the factors that may give rise to a legitimate expectation. The note also sets out the issues which the court may take into account when deciding whether a public body has abused its position by frustrating a claimant's legitimate expectation.

A note setting out the different functions undertaken by local authorities in England.

A note setting out the different categories and structures of local authorities in England.

A practice note on the tenant's right to compensation when the landlord successfully opposes the tenant's right to renew a business lease (section 37, Landlord and Tenant Act 1954).

A note discussing the implications, on the landlord's right to oppose a lease renewal under section 30(1)(g) of the Landlord and Tenant Act 1954, of a transfer of the landlord's interest between group companies.

A practice note discussing the landlord's right to oppose the renewal of a business tenancy on the ground that the tenant is in persistent arrears (section 30(1)(b), Landlord and Tenant Act 1954 (LTA 1954)). The note looks at: The meaning of arrears. The meaning of persistant delay. The exercise of the court's discretion. Considerations for the landlord and the tenant.

A practice note discussing the landlord's right to oppose the renewal of a business tenancy on the ground the landlord can provide the tenant with suitable alternative accommodation (section 30(1)(d), Landlord and Tenant Act 1954 (LTA 1954)). The note looks at: What the terms of the offer should be. The suitability of the alternative accommodation. The preservation of goodwill. Considerations for the landlord and the tenant.

A practice note discussing the landlord's right to oppose the renewal of a business tenancy on the ground the landlord intends to demolish or reconstruct the premises (section 30(1)(f), Landlord and Tenant Act 1954 (LTA 1954)). This is the most often used ground of opposition to the tenant's statutory right to a lease renewal. The note looks at: The type of works falling within section 30(1)(f) of the LTA 1954. The landlord's requisite intention to redevelop. The tenant agreeing to a new lease of part or new terms in the lease. Considerations for the landlord and the tenant.

An overview of the landlord's right to oppose the renewal of a business tenancy under section 30(1) of the Landlord and Tenant Act 1954. This note also provides guidance on the repercussions of the landlord misrepresenting its opposition.

This note explains the procedures to be used where either the landlord or the tenant wish to initiate renewal of a business lease under the Landlord and Tenant Act 1954. The note examines: The procedure for serving a section 25 notice. The procedure for serving a section 26 request. Applications to the court. For information on the procedures for termination of business tenancies without renewal, see Practice note, LTA 1954: procedures for termination of a lease without renewal.

A practice note on the criteria that must be satisfied for a tenant of a business lease to have security of tenure under the Landlord and Tenant Act 1954 (LTA 1954).

An outline of the law relating to misrepresentation.

An outline of the law of negligent misstatement. This note considers the requirements of a claim: duty of care, breach and causation. It also discusses relevant authorities including the landmark decision in Hedley Byrne v Heller [1964] AC 465.

A note on the obligations of an involuntary bailee, and what the landlord may do with the tenant's belongings that have been left behind in the demised premises after the end of the term.

This note provides an overview of the pre-action protocol for possession claims based on rent arrears predominantly dealt with in the county court.

Privilege against self-incrimination exempts a person from being compelled to produce documents or provide information which might incriminate him in any potential or current criminal proceedings in England and Wales. This practice note provides an overview of the relevant law.

A note on the principles and development of the doctrine of proportionality and the standard of review applied by the courts when determining public law claims.

This case tracker provides information on and links to all legal updates published by PLC on public procurement decisions by UK Courts, the Court of Justice of the European Union or the European Ombudsman.  The legal updates are organised in tables according to the aspect of public procurement law they relate to.  Tables covering cases on specific areas of public procurement law are included under the following general headings: Procedural issues. Evaluation. Contracts not fully covered by the public procurement regime. Direct award and material changes to contracts. Remedies. Court proceedings. Public law challenges. Transposition.

A practice note summarising the consultation process, begun in July 2006, to reform insurance contract law.

An outline of the law of damages for actions in contract and tort and the remedies that may be agreed by contracting parties. 

A note outlining the law of restitution.

This practice note discusses the tools available to those who have to apply an ambiguous piece of legislation.

A guide to the procedures under UK corporate insolvency law to enable the adjustment of antecedent transactions and the protection of the insolvent company's assets for the benefit of its creditors. This note covers disclaimer, transactions at undervalue, preferences, extortionate credit transactions, invalid floating charges, transactions defrauding creditors, contribution by past shareholders and directors, and common law rules.

This note summarises the key provisions of the Convention on the law applicable to contractual obligations (80/934/EEC) (Rome Convention), which applies to contracts made before 17 December 2009 and contains rules for determining the applicable law.

This practice note summarises, from an English law perspective, the key provisions of Regulation 593/2008 on the law applicable to contractual obligations (Rome I). It highlights the main changes from the rules contained in the Rome Convention on the law applicable to contractual obligations of 1980 (Rome Convention).

This practice note explains the principle established in the House of Lords' case of Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19 and its subsequent application to defects in both contractual and statutory notices.

This practice note explains the difference between set-off and netting. It also reviews their use in finance transactions.

A note outlining the changes to the law on shadow directors under the Companies Act 2006 (2006 Act). For a link to the 2006 Act, see Companies Act 2006: publication of final text. For general background to the 2006 Act, see Practice note, Companies Act 2006: materials. Most of Part 10 (a company's directors) came into force on 1 October 2007, other than: (1) provisions relating to directors' conflict of interest duties, declarations of interest in existing transactions or arrangements, and underage and natural directors, which came into force on 1 October 2008; and (2) provisions relating to the register of directors, including directors' residential addresses, which came into force on 1 October 2009.

The Solicitors' Code of Conduct 2007 and all other existing Solicitors Regulation Authority (SRA) rules have been rewritten and reformatted into a new SRA Handbook. The date for implementation of the Handbook is currently scheduled to be 6 October 2011. This Practice note highlights the ten key points that in-house lawyers need to consider in advance of its introduction.

An outline of the English court system, the doctrine of precedent, and the rules of statutory interpretation.

Practice note on the effect of a tenant's insolvency on its landlord's ability to distrain or sue for rent or to forfeit the lease.

A note on the Party Wall etc. Act 1996 (PWA 1996). The note explains what works the Act covers, it's notice requirements, the dispute process and what happens when the Act is not complied with. It also sets out a number of practical issues that arise and briefly explains the Act's relationship with the Access to Neighbouring Land Act 1992.

A note considering the issue of causation in negligence claims and how the law limits liability for the consequences of negligent conduct. In particular, it considers the principle of remoteness and the effect of the decisions in SAAMCo and The Achilleas.

An overview of the matters to consider when a company enters into a transaction or arrangement with a person who is a director of the company or a director of its holding company. This note looks at the regulation of such transactions and contains links to more detailed practice notes and specimen resolutions on certain transactions that a company may enter into with its directors

In this practice note, Jon Holland, partner, and Catherine Robert, associate, of Hogan Lovells, examine the financial sanctions legislation in the UK, which is implemented and administered by HM Treasury, and provide guidance on practical steps that can be taken to ensure compliance.

This practice note discusses the basic pre-conditions of distress to recover arrears of rent, how a bailiff can gain entry to premises and what goods can be seized.

This practice note examines what constitutes a public authority for the purposes of the Human Rights Act 1998. The distinction between public authorities and public functions and private bodies and private functions is unclear, particularly in relation to hybrid bodies, where only some functions may be public (section 6(5), HRA). The position is made more difficult with public/private partnership arrangements and public bodies contracting out functions to the private sector. This distinction is important because a public authority must not act in a way that is incompatible with the Convention rights (section 6, HRA).

A note on who is the competent landlord for the purposes of the Landlord and Tenant Act 1954 in the period between completion and registration of a transfer.