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Due diligence means that all reasonable precautions were taken and all due diligence was exercised to avoid the commission of the offence. This requires the defendant to produce evidence of the system and procedures it has devised in an effort to avoid unfair practices.
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Due diligence—head lease use provisions—checklist On any due diligence exercise on the acquisition of a leasehold property it is essential to consider the permitted use, any breaches of the permitted use and the ability of the tenant to change use. Any provisions that are unduly restrictive may have an adverse impact on value or the ability of the buyer to secure finance or dispose of their interest. What is the permitted use? If there is no specific restriction in the lease, the buyer will be free to use the property as they please. However, most leases provide that the tenant may only use the property for a specific purpose or purposes. The relevant clause of the lease should be checked and reported on to the buyer. If the use permitted by the lease does not cover the buyer’s proposed use of the property, advise the buyer at the earliest opportunity. Consider making the purchase of the property conditional on the appropriate consent to the buyer’s use being obtained. The consequences...
Considerations and next steps for victims of fraud—checklist This Checklist is designed to assist individuals and companies who suspect they have been a victim of fraud. It considers the immediate steps they should take to gather and preserve evidence, obtain legal advice, mitigate and reduce risk and obtain emergency or urgent relief (such as freezing orders and insurance cover), including whether it is necessary to report a suspected fraud to the police and how to do so using the Action Fraud service. It also addresses the choice between issuing civil and criminal proceedings for fraud and explains the possibility of running a civil fraud claim in parallel with a criminal prosecution (private or public). This Checklist should be read in conjunction with the Practice Notes: • Starting a civil fraud claim—a practical guide • Civil fraud—heads of claim • Civil fraud—frequently asked questions (FAQ) • Commencing criminal proceedings—applying for the issue of a summons • Fraud—civil claim and private criminal prosecution compared For full guidance on fraud offence under criminal...
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Standard contractual clauses and binding corporate rules—EU methodology—flowchart This Flowchart reflects the methodology set out by the European Data Protection Board (EDPB) for determining whether you can make an international transfer of personal data on the basis of standard contractual clauses (SCCs) or binding corporate rules (BCRs). You can only rely on these transfer mechanisms where the protections, enforceable rights and legal remedies provided to individuals in the recipient country are essentially equivalent to those guaranteed under the General Data Protection Regulation (GDPR). The ‘essentially equivalent’ test was laid down in the case of Facebook Ireland and Schrems (Schrems II), which was decided under the EU GDPR. The Information Commissioner’s Office (ICO) has published Guidance on transfer risk assessments, which adopts the term ‘sufficiently similar’ in relation to transfers under the UK GDPR and uses a different methodology. The ICO is happy for organisations exporting data from the UK to follow either methodology. This Flowchart reflects the EU methodology, as set out in: • EDPB Guidelines on...
Client due diligence process workflow This Flowchart suggests a workflow for the practical steps and factors you should consider when conducting an appropriate level of client due diligence (CDD). You can refer to this whenever you are taking on a new client or matter. It is intended to help you comply with the CDD requirements of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017, as amended. This workflow dovetails with the New client, New matter, CDD client risk assessment and CDD matter risk assessment form Precedents in the Client and matter inception subtopic. Other precedents Other Precedents that may be of use include: • CDD client risk assessment form—law firms • Explanatory notes—CDD client risk assessment—law firms • CDD matter risk assessment form—law firms • Explanatory notes—CDD matter risk assessment—law firms • New client form • New matter
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THIS PRACTICE NOTE APPLIES TO ALL PRIVATE SECTOR PENSION SCHEMESIn a share sale, the buyer purchases the issued share capital of the target company. Through this acquisition, the buyer is commercially impacted by the contracts and deeds entered into by the target company. Moreover, the acquisition of the target does not change the contracts of employment the target company has agreed with its employees: the rights of both the target company and its employees continue irrespective of the target's change of ownership. This Practice Note summarises the pensions aspects of the due diligence carried out by the buyer in a share sale. For a detailed review of the due diligence issues that may arise where the target company:•participates in a defined benefit (DB) arrangement, see Practice Note: Pensions due diligence in share sales—issues specific to DB schemes•participates or contributes to a defined contribution (DC) arrangement, see Practice Note: Pensions due diligence in share sales—issues specific to DC schemesThe purpose of due diligenceDue diligence is the process by which a buyer...
THIS PRACTICE NOTE APPLIES TO ALL PRIVATE SECTOR PENSION SCHEMESBusiness sales (also referred to as asset sales) involve a seller selling part, or all, of its physical business to a buyer. The buyer ends up assuming ownership of the contracts and assets specified in the business sale agreement. These contracts will typically include business contracts and the employment contracts for some, or all, of the seller’s employees as well as any plant, machinery, property, goodwill, etc.This Practice Note should be read in conjunction with the following Practice Notes:•Pension issues on a business sale—acting for the buyer•Pension issues on a business sale—acting for the seller•TUPE—what pension benefits should the transferee provide?The purpose of due diligenceDue diligence is the process in which a buyer obtains information on the seller's business and the accompanying liabilities. Lawyers acting on behalf of the buyer are often given access to an actual or virtual data room which holds copies of documents providing information on the seller and its business. Lawyers analyse the documents provided before preparing...
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Property due diligence report—share or asset purchase A. Executive summary 1 Scope of review For the purposes of this report we have reviewed the following properties [insert details of the properties], (the ‘Properties’). 2 Basis of the review 2.1 Information relating to the Properties for the purposes of conducting our due diligence exercise and preparing our report has been sourced from the following: 2.1.1 documents provided in the due diligence [data room OR files] as set out in the index in Schedule...
Property queries to be included in a due diligence questionnaire for an asset or share purchase Real property 1 Â 1.1 Please provide details of all properties owned, occupied or used [by any Group Company OR in connection with the Business] (the Properties), including whether freehold or leasehold. 1.2 In respect of the Properties, please provide the following information: 1.2.1 full address; 1.2.2 approximate size of site and total size of buildings; 1.2.3 legal owner; ...
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How might the European Commission proposal for new conflict of law rules for assigned claims impact the secondary loan market? Summary This Q&A refers to the European Commission’s proposal for a Regulation on the law applicable to the third-party effects of assignments (the Proposal) published on 12th March 2018, which could have an impact on the market for trading participations in syndicated and bilateral loans. Both of the Loan Market Association (LMA) and the City of London Law Society made representations asking for the Proposal to be shelved or at least amended to accommodate current market practice in the secondary loan market. Their representations are available on their respective websites. It is fair to say that in its original form the Proposal would have disrupted the secondary loan market by making due diligence on the part of a buyer much more complicated for the reasons given below. The UK indicated on 9 July 2018, shortly after publication of this Q&A, that it would not opt in...
When administering an oath, do I have to verify the deponent’s identity? Rules and guidance from the regulators on this point are thin on the ground, and getting ever thinner. The SRA Code of Conduct 2011 provided you must properly administer oaths, affirmations or declarations where you are authorised to do so (O(11.4)). There is no mention of administering oaths in the SRA’s 2019 regime. We have looked back at historic professional conduct rules and guidance to see if they shed any light on solicitors’ professional obligations when administering oaths. The 1999 Guide to the Professional Conduct of Solicitors says: ‘17.06: Administering oaths When administering oaths and affirmations or taking declarations, a solicitor is under a duty to ascertain: a) that the deponent is in the solicitor’s presence by enquiring whether the signature to the document before the solicitor is the name and in the handwriting of the deponent; b) that the deponent is apparently competent to depose to the affidavit or declaration; c) that the deponent knows he or...
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Exciting news for businesses tackling fraud risk management. We are thrilled to introduce our new and expanded fraud risk management guidance and tools, now featuring resources on the new failure to prevent fraud offence, as well as how to manage the risk of being a fraud victim. With fraud being the most prevalent crime in the UK, safeguarding your business is more crucial than ever.
The European Commission has introduced the competitiveness compass, a strategic framework aimed at guiding the Commission's work for the next five years, which lists priority actions to enhance Europe's competitiveness. This is the first major initiative of the Commission in this mandate. This competitiveness compass is building on the recommendations of the Draghi report on ‘The future of European competitiveness’, published in September 2024 (see: LNB News 10/09/2024 44). The initiative aspires to position Europe as a leader in the development, manufacturing, and marketing of future technologies, services, and clean products, while also achieving climate neutrality. Despite lagging behind other major economies in productivity growth over the past two decades, the EU possesses the necessary resources, including a skilled workforce, capital, savings, and a unique social infrastructure, to reverse this trend. However, urgent action is required to address persistent barriers and structural weaknesses. Full details are available in the competitive compass document and more details can be found below.
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