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Option agreements—acting for the buyer—checklist Call or put option? In a 'call' option the buyer will have control in that it may call for a transfer of the property. A 'put' option gives the seller control in that it can require the buyer to take a transfer of the property and therefore the buyer should be especially vigilant in ensuring that the terms for the transfer (particularly those relating to valuation and, if appropriate, insurance) are as favourable as possible. Seller's charges If the property is already mortgaged at the date of grant of the option agreement, there is a risk that the mortgagee may overreach the option by exercising its power of sale. Therefore ensure that the mortgagee either: • joins into the agreement (this is rare in practice), or • provides written consent to the granting of the option In either case, the mortgagee should confirm that if the buyer exercises the option it will acquire the property free from the charge or, if the mortgagee...
DPA suitability checklist Court's oversight of the interests of justice and fairness, reasonableness and proportionality The UK deferred prosecution agreement (DPA) regime provides for judicial oversight of DPAs. After negotiations as to the terms of a DPA have commenced and before it has been concluded, the court must determine: • whether it is likely to be in the interests of justice, and • that its proposed terms are fair, reasonable and proportionate Therefore, each factor must be supported by clear and persuasive proof in order to seek to persuade the court to approve the DPA. The declarations given under Schedule 17 Part 1, para 8 to the Crime and Courts Act 2013 (CCA 2013) to date provide insight into the court's approach as to when a DPA is suitable and this has, in turn, fed into the prosecutor's approach (see Practice Note: The SFO's approach to Deferred Prosecution Agreements (DPAs) [Archived]). For detailed information on DPAs in general, the process followed by the court when considering whether to...
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Improving efficiency workflow This Improving efficiency workflow sets out the steps to take when improving a process within your legal department. It is based around the Define, Measure, Analyse, Improve, Control (DMAIC) framework of continuous improvement and identifies Precedents you could use to support you with each step. Note 1 You could do this by: • identifying where there is waste in a process—see Precedent: Identifying waste questionnaire, and/or • looking at a process from your clients’ perspective—see Precedents: ◦ Improving efficiency—Voice of the Customer/Client (VOC)—blank ◦ Improving efficiency—Voice of the Customer (VOC)—worked example for in-house lawyers Note 2 You could do this by: • mapping the process and identifying who does what in that process—see Precedent: ◦ Identifying who does what in a process (RACI framework)—blank • collecting data—see Precedent: Simple check sheet Note 3 You could do this
Maintaining the PSC register—flowchart View or print a full size PDF version: The flowchart summarises the main steps for a typical company in identifying people with significant control (PSCs) or relevant legal entities (RLEs) so as to update the company’s PSC register and provide details to the Registrar of Companies in relation to the central register. Note however that eligible Scottish partnerships (which are covered by the PSC regime) are not required to keep a PSC register of their own but are only required to deliver PSC information to Companies House for the central register. One of the corporate forms covered by the PSC regime until the end of the Brexit transition period was the Societas Europaea (SE). However any SE still registered in the UK at the end of transition period automatically converted into a UK Societas. For further details on the conversion of SEs to UK Societas see Practice Note: UK Societas. The Economic Crime and Corporate Transparency Act 2023 (ECCTA 2023) received
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Preparing for the auditors—in-house lawyers One of the key dates in your organisation’s calendar is the date of the annual audit. An important part of the auditors’ role is to ensure that your organisation’s processes are fit for purpose. Central to that is your organisation’s approach to legal matters and legal risk. As an in-house lawyer, you need to prepare for the auditors’ visit because inevitably they will want to meet with you. While each audit firm has its own standard set of questions for in-house lawyers, the questions tend to follow certain themes, eg: • your risk register • litigation • applicable law and regulation • contracts • intellectual property (IP) • legal work process • your knowledge and experience Since joining your organisation, you have hopefully had the opportunity to meet with the key directors and heads of function. Those meetings will have given you the opportunity to find out more about many of the issues the auditors will be interested in. See Practice...
Disclosure—solicitors' obligations This Practice Note identifies solicitors’ obligations in relation to disclosure to their client and the court. It also explains the need to preserve documents, provide the required disclosure and co-operate with the other side particularly in relation to electronic disclosure (e-disclosure). This Practice Note does not cover the provisions of the disclosure scheme operating in the Business and Property Courts. For guidance, see: Disclosure scheme—overview. Obligations Throughout the disclosure process you have obligations to your client, to the court and in accordance with other relevant provisions. These include, but are not limited to: • advising your client of the need to preserve documents—see further: Preservation of documents • ensuring your client complies with all relevant and applicable provisions and makes compliant disclosure—see further: Full disclosure • co-operating with the other side, specifically in relation to e-disclosure and/or where the claim is proceeding on the multi-track and does not involve a claim for personal injury—see further: Co-operating with the other side • a reasonable duty to manage...
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Consultancy agreement—company and individual—pro-client (short form) [ON HEADED NOTEPAPER OF CLIENT COMPANY] [Insert consultant’s name] [Insert consultant’s address] [Insert date] Dear [insert consultant’s name] [ Consultancy agreement OR Insert name of project ] Further to our recent discussions, I am pleased to confirm the terms of our agreement regarding the provision of your consultancy services to [insert name of client company] (Company). 1 Term 1.1 [Subject to the terms set out in this letter, your engagement [will commence OR commenced] on [insert date] and will continue unless or until either party gives to the other not less than [insert number] [weeks’ OR months’] prior notice in writing. OR 1.2 Your engagement will be for a fixed period of [insert number] months from [insert date], subject to the terms of this letter and subject to the right of either the Company or you to give to the other not less than [number] [weeks’ OR months’] notice in writing during such fixed period terminating the...
Distribution agreement—non-exclusive—short form This Agreement is made on [date] Parties 1 [insert name of party] [of OR a company incorporated in England and Wales under number [insert registered number] whose registered office is at] [insert address] (Manufacturer); and 2 [insert name of party] [of OR a company incorporated in England and Wales under number [insert registered number] whose registered office is at] [insert address] (Distributor); each of the Manufacturer and the Distributor being a party and together they are the parties. Background (A) The Manufacturer manufactures [and supplies] the Products. (B) The Distributor has agreed to distribute the Products on a non-exclusive basis in the Territory in accordance with the provisions of this Agreement. The parties agree: 1 Definitions 1.1 In this Agreement: Active Sales • has the meaning given in Article 8(7) of VABEO; Affiliate • means any entity that directly or indirectly controls, is controlled by, or is in under common control with, another entity where “control†means the beneficial ownership of...
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When an organisation wishes to add several branches to its Sponsor Licence, can this be done ‘in bulk’ (via one report on the Sponsor Management System and then a single submission of supporting documentation relating to each of the new branches), or must an individual SMS report be made for each new branch? Practice Note: Applying for a sponsor licence under Workers and Temporary Workers: eligibility and suitability notes that an organisation which has different subsidiaries, location offices or campuses (all of which are termed 'branches' for these purposes) in the UK can choose to register: • all its branches together under one licence • all its branches separately, or • several of its branches together, eg by location The relevant section of the sponsor guidance is at Workers and Temporary Workers Sponsor Guidance, Part 1, Organisations with multiple branches. Where a sponsor wishes to add new branches subsequent to the grant of a licence, the Practice Note: Workers and Temporary Workers sponsor duties: sponsor changes of circumstances notes that...
What are the provisions that govern whether evidence consisting of covertly made recordings may be admissible within private law proceedings under the Children Act 1989? The law relating to the recording of conversations between private individuals and the use of those recordings in court proceedings is a developing area. As a matter of first principles, there is no offence committed where an individual covertly records a conversation with another individual. The Regulation of Investigatory Powers Act 2000 (RIPA 2000) applies to public bodies but not to individuals. Likewise, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000, SI 2000/2699 apply to businesses in respect of the recording of conversations without notice to the person being recorded or in certain specified exceptional circumstances. Recordings may also be breach of the EU’s General Data Protection Regulation, Regulation (EU) 2016/679 (EU GDPR). In M v F (Covert Recordings of children) , Peter Jackson J (as he then was) commented that the exemption within the legislation applying to normal domestic use...
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A round-up of UK competition law developments, including the latest UK merger control developments.
A round-up of EU competition law developments, including the latest EUMR developments.
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