Despite Northern Ireland being part of the UK, the legal landscape differs significantly during the due diligence process. To help navigate Northern Ireland’s legal framework, we have highlighted notable due diligence matters that will require Northern Ireland legal counsel.
Property
Northern Irish property law shares many similar legal concepts with English property law. However, there are fundamental areas that significantly differ. One crucial difference is in relation to the concept of security of tenure which is governed in Northern Ireland by the Business Tenancies (Northern Ireland) Order 1996 (BTO).
Under the BTO, any tenancy for a period of nine months or more is protected with the tenant being granted security of tenure. There are certain grounds under which a landlord can oppose the grant of any new tenancy with one of the most common being redevelopment of the property. The grounds of opposition are outlined in the BTO and, when challenged, often end with a hearing at the Lands Tribunal. Unlike in England and Wales, where parties can agree that any lease will be contracted out of the English legal equivalent (the Landlord and Tenant Act 1954), the BTO does not provide this option for parties in Northern Ireland.
Another example of the key differences in the jurisdictions is the additional classification of title in Northern Ireland known as a “Fee Farm Grant” which is most easily explained as being a freehold with leasehold traits such as a ground rent being payable and the grantor’s ability to terminate under forfeiture.
The Property (NI) Order 1997 prohibited the creation of new fee farm grants, but many property law solicitors still encounter this title. The above are just two examples of the differences in the jurisdictions with other key differences in legislation and land registry existing which should be considered in any due diligence process involving Northern Irish property.
Employment
Whilst Northern Irish employment law is heavily dictated by English legislation and its case law, there are several notable differences. There is specific legislation governing this in Northern Ireland, notably the Employment Rights (Northern Ireland) Order 1996 and the Employment Act (Northern Ireland) 2016.
Some examples of these notable jurisdictional differences are set out below. In Northern Ireland, the qualifying period for claiming unfair dismissal is one year whereas it is two years in England and Wales.
Another difference is that where 100 or more redundancies are proposed in Northern Ireland, the minimum consultation period remains 90 days (whereas it is 45 in England and Wales). Another difference surrounds the law on holiday pay. The recent Supreme Court case (Chief Constable of Northern Ireland v Agnew [2023] UKSC 33) has brought the holiday pay laws in the rest of the UK into line with Northern Ireland.
The Agnew case represents a significant departure from the holiday pay law in Great Britain until this point. Our employment colleagues provided an update on this here.
Litigation
Northern Ireland is a separate jurisdiction with its own court system. Given this, the rules and procedures in Northern Ireland can differ from that of England and Wales and when considering any such contentious matters, advice should be sought.
The potential liabilities, damages or legal costs recoverable, as well as court procedures and time limits can significantly differ in Northern Ireland.
Liquor Licensing
Liquor licensing in Northern Ireland is completely separate and vastly different from other jurisdictions in the UK. The primary legislation is the Licensing (Northern Ireland) Order 1996 (as amended by the recent Licensing and Registration of Clubs (Amendment) Act (NI) 2021).
Northern Ireland is often viewed as having a much stricter regime for liquor licensing with applications and their processes remaining solely with the Courts (rather than Councils as in some jurisdictions).
In Northern Ireland, there are a finite number of public house and off sales licences and there is still the requirement to surrender a subsisting licence into a new pub or off sales premises. This makes these licences valuable assets and can often lead to contentious objections to new applications. This highlights the importance of Northern Irish advice in relation to licences in this jurisdiction to ensure their validity and to protect their value.
Execution of Deeds
In England and Wales, electronic deeds reign, but in Northern Ireland, it’s all about the “wet ink” signature tradition for all deeds, notably Land Registry. Whilst electronic signatures have represented a practical and cost-effective method for firms to execute documents in the post COVID-19 era, this modern approach is yet to be adapted in Northern Ireland.
Editorial prepared by Darren Marley, Partner, Corporate with the assistance of:
- Andrew Edwards, Senior Associate @ Employment
- Niamh Laverty, Partner @ Commercial Property
- Maeve Fisher, Partner @ Licensing
- Kamila Babiak, Trainee Solicitor
Darren Marley, Partner, Corporate
Darren specialises in both advisory and transactional work ranging from seed capital investments to advising buyer/sellers on M&A transactions.
He provides advice on corporate issues including sales and acquisitions of companies, equity investments, the restructuring of groups of companies and the provision of general corporate law advice to shareholders and directors.
T: 028 9024 3878
E: Darren.Marley@MillsSelig.com
W: https://millsselig.com/team/darren-marley/
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