Substantive Law

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).

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.

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.  

A commentary on the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277) which implemented the Unfair Commercial Practices Directive (2005/29/EC) in the UK by introducing a general prohibition on traders treating consumers unfairly and requiring businesses not to mislead consumers through acts or omissions or subject them to aggressive commercial practices.

To be enforceable a contract with an organisation must be made by a person with authority. This note looks at the mixture of common law and statutory provisions that determine whether a person has authority.

An outline of the use of conditions precedent in contracts.

An outline of the ways in which a party to an agreement may discharge the contract.

An outline of express and implied terms in contracts.

A review of the legal concepts involved in the formation of binding contracts.

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.

This note provides a summary of the Corporate Manslaughter and Corporate Homicide Act 2007. The Act received Royal Assent on 26 July 2007 and is in force from 6 April 2008 (with the exception of the provisions relating to deaths in custody). The Act applies to the whole of the UK. Broadly, under the Act, an organisation (which includes most employers) is guilty of an offence if the way in which its activities are managed or organised (by its senior management) causes a person's death and this amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

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

An outline of the common law fiduciary duties, ways of modifying those duties (including the use of Chinese walls) and proposals for reform.

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.

This practice note explains the rule under section 3 of the Human Rights Act 1998 that, so far as possible, legislation must be read and given effect in a way compatible with the European Convention on Human Rights. The note explains: The scope of the rule and how it applies to various types of legislation. How the courts have approached its application. The limits of what kinds of interpretation are "possible" to achieve human rights compliance.

Where two or more persons are liable to another, they may be jointly liable, severally liable or jointly and severally liable. This note explains the concepts of joint, several, and joint and several liability.

This note considers the legal, regulatory and reputational risks arising from communications and all forms of document management, including: Monitoring and review. Storage and disposal of documents. Document retention periods.

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.

An outline of the law of professional negligence. This note considers: The requirements for claims in contract and tort. The application of the SAAMCO principle. The Bolam test. Contributory negligence. Contribution. The use by professionals of exclusion clauses to limit liability.

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

An outline of equitable remedies including rectification, specific performance, injunctions, account of profits, subrogation, rescission and declarations. The doctrines of equity are also discussed.

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

This note considers: The Rome I Regulation on the law applicable to contractual obligations.   The Rome II Regulation on the law applicable to non-contractual obligations. It summarises the background to both Regulations, their legislative history and key objectives (including the instruments which preceded their introduction, namely the Rome Convention on the law applicable to contractual obligations and the Private International Law (Miscellaneous Provisions) Act 1995).

Under Rome II (Regulation 2007/864) the courts of all EU member states other than Denmark must apply the same set of rules to determine the law that will govern non-contractual obligations arising between parties in civil and commercial matters. This practice note outlines the key general provisions of Rome II, highlighting the key provisions from an English law perspective and focusing on: Drafting agreements as to choice of law. The law governing pre-contractual negotiations. The law governing product liability cases. The steps that commercial parties should consider taking in the light of the rules in Rome II.

This note explains what the Court of Justice of the European Union (formerly known as the European Court of Justice (ECJ)) is, why a reference would be made to it and who can make a reference. The note gives examples of questions which might be referred to the ECJ and sets out a brief summary of the procedure to be followed and the effect of a ruling by the ECJ on the question referred.

The Solicitors Regulation Authority has issued a new Handbook, including a new Code of Conduct, which is prompted by the possibility of Alternative Business Structures (ABSs) opening for business from 6 October 2011. The Handbook is being introduced on a phased basis, beginning in August 2011. The key implementation date was 6 October 2011. This practice note explains the background to the new Handbook and its structure. For information on how the new Handbook and Code of Conduct will affect common aspects of property transactions, see Practice note, SRA Handbook 2011 and Code of Conduct: issues for property lawyers.

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

A practice note discussing when time limits in a contract are essential conditions of the contract, a breach of which would amount to a fundamental breach that would justify the other party terminating the contract.

This practice note addresses the circumstances in which vicarious liability arises, at common law and under statute. It also looks at the implications of vicarious liability, and the alternative bases for attributing liability where vicarious liability is not applicable.

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).