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This Practice Note outlines the law concerning criminal recklessness. The subjective test for recklessness Certain statutory and common law offences allow the prosecution to prove mens rea through ‘recklessness’. Put simply, recklessness is where the accused takes an unjustified risk that results in unlawful harm or damage. The House of Lords in R v G reaffirmed the subjective approach to recklessness. Before R v G, two distinct tests were used, depending on the offence charged: Subjective recklessness from R v Cunningham: the prosecution had to establish that the accused personally foresaw the risk. Objective recklessness from R v Caldwell: the prosecution only needed to show that the risk would have been obvious to a reasonable person, without proving the accused themselves foresaw it. In R v G, the House of Lords concluded that the objective test could operate unfairly where a defendant did not foresee the
This Practice Note examines the remedy of rescission, explaining when and in what manner a contract can be unwound (at common law, in equity and under statute) and thereby terminated and brought to an end. It covers the consequences and effects of rescission, the principal grounds for setting aside an agreement (misrepresentation, mistake, undue influence, duress, non‑disclosure, fiduciary misdealing and bribery) and the main obstacles to claiming rescission—affirmation, the intervention of third‑party rights and the impossibility of restitution. For further guidance on rescission in the context of misrepresentation, see Practice Note: Misrepresentation—rescission as a remedy. There are many ways in which a contract may reach its end; see: Terminating contracts—how and when a contract ends—overview for a brief and accessible summary, with links to the related further practical guidance, including Practice Note: Termination and expiry of contracts. For a table
What is a res judicata? A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal. Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice. in personam—binds the parties and their privies in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world) A party may rely on res judicata: as an estoppel to defeat an opponent’s claim or defence; and/or as the basis of their own claim or
The offence of causing grievous bodily harm with intent Wounding or causing grievous bodily harm (GBH) with intent can be tried solely in the Crown Court on indictment. Elements of the offence Under the Offences against the Person Act 1861 (OATPA 1861), the prosecution must establish that the defendant unlawfully and maliciously: wounded with the intention of causing GBH, or caused GBH with that intention, or wounded intending to resist or prevent the lawful arrest or detention of any person, or caused GBH intending to resist or prevent the lawful arrest or detention of any person ‘Unlawfully’ and ‘maliciously’ Unlawfully The wounding or causing of GBH must be unlawful. Such conduct may be lawful if used: in self-defence in defence of another in defence of property for the prevention of crime where the victim gave express or implied consent For further information on these defences, see below:
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ARCHIVED This Practice Note is archived and is no longer maintained. It assesses the rules on service that applied between the UK’s departure from the EU on 31 January 2020 and the end of the implementation period on 31 December 2020, which the EU refers to as the transition period. It examines whether the implementation period could be extended, whether Regulation ( EC) 1393/2007 (the Service Regulation) governed service during that timeframe, and ways to minimise uncertainty by employing process server clauses. For a swift Brexit reference tool answering key questions and providing useful updates, research tips and materials, see: Brexit Bulletin—key updates, research tips and resources. Definitions This Practice Note uses the following definitions: European Union ( Withdrawal) Act 2018— EU( W) A 2018 European Union ( Withdrawal Agreement) Act 2020— EU( WA) A 2020 exit day—defined in EU( W) A 2018, s 20, as 31 January...
This Practice Note explains the rules for trial witness statements in the Business and Property Courts, signed on or after 6 April 2021, which fall within CPR PD 57AC. Only statements signed on or after that date are within scope. It concerns the Business and Property Courts at trial stage, and related requirements only. Introduction Material in a witness statement that is not a trial witness statement, and affidavits, are outside CPR PD 57AC (see CPR PD 57AC, para 1). For a Checklist to support legal representatives preparing a trial witness statement governed by CPR PD 57AC, see: Checklist for legal representatives—trial witness statements subject to CPR PD 57AC. For help on producing a credible witness statement, see Practice Note: How to write a credible witness statement. Status of CPR PD 57AC CPR PD 57AC makes clear that, where it conflicts with another practice...
ARCHIVED : This Practice Note has been archived and is not maintained . The table below outlines key publicly available details on the practical impact of the coronavirus ( COVID-19) pandemic on arbitration proceedings run by and/or under the rules of several leading arbitral institutions and associations. In this context, we have centred on selected key arbitral organisations for which our service provides practical guidance. The positions and guidance issued by these organisations continue to develop in response to the pandemic. Consequently, whilst this content is maintained, practitioners should verify the very latest information relevant to their proceedings, particularly as website updates by organisations may trail behind changes in policy and procedure. It should also be noted that some organisations do not provide information on current status on their websites. Accordingly, from a practical standpoint, where uncertainty arises it will generally be prudent to...
ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note explores how temporary COVID-19 measures affect dispute resolution. It is intended to help dispute resolution practitioners grasp changes to civil court procedures and processes during the pandemic, and how those shifts, and the pandemic, may influence their practice and individual cases. It addresses the practical impact of coronavirus on key litigation steps and concepts. Read alongside: Coronavirus ( COVID-19) civil court specific guidance—dispute resolution [ Archived], giving further guidance for particular courts SCCO guidance for detailed assessment from 1 August 2020 This Practice Note provides ‘matter-neutral’ guidance on the procedural effects of the coronavirus for dispute resolution in England and Wales. For substantive and ‘matter-specific’ consequences of the coronavirus, see: Contract breach and termination— Coronavirus ( COVID-19) and contractual...
This Practice Note reviews the costs associated with arbitrations brought under the Vienna International Arbitral Centre ( VIAC) Arbitration Rules 2021 (the Vienna Rules). The 2021 Vienna Rules came into force on 1 July 2021 and govern any proceedings begun on or after that date. They set out the typical categories of costs that parties are likely to incur during arbitrations conducted under the Vienna Rules. If your case proceeds under the Vienna Rules 2018, in effect from 1 January 2018, you should refer to that earlier text. The registration fee The claimant (or counter-claimant) must pay a non-refundable registration fee when filing the Statement of Claim ( Vienna Rules, art 10(1)). The fee depends on the amount in dispute ( Vienna Rules, Annex 3): €500 where the amount in dispute is up to €25,000 €1,000 where the amount in dispute is between...
Synopsis: The World Economic Forum estimates corruption costs at least US$2.6tn, equalling no less than 5% of global GDP. Some jurisdictions forfeit as much as 17% of their GDP to corruption ( Valle, Martim Della & Schilling de Carvalho, Pedro, ‘ Corruption Allegations in Arbitration: Burden and Standard of Proof, Red Flags, and a Proposal for Systematization’, Journal of International Arbitration 39, no 6 (2022)). Losses linked to trade-based money laundering in developing nations reached US$9tn between 2008 and 2017. Yet corruption’s effects go far beyond economics. It penetrates society, curbing growth and development, while weakening consent, democracy, and the rule of law. Arbitrators play a vital part in confronting corruption and money laundering in international arbitration. This Practice Note is intended to help identify and understand how best to address corruption and money laundering questions in arbitrations. Its...
Arbitration may proceed under self-run ad hoc mechanisms or through institutional rules and processes. In real-world settings, the preference for ad hoc or institutional models shifts across sectors and turns on the character of the dispute. This Practice Note explores how institutional and ad hoc arbitration differ, with a focus on construction matters, and weighs the respective pros and cons. For broader commentary on institutional and ad hoc approaches, see Practice Note: Comparing institutional and ad hoc arbitration. What is institutional arbitration? An institutional arbitration is overseen by a recognised arbitral body and unfolds in line with that body’s prescribed procedures and rules. Typically, the parties’ contract includes an arbitration clause naming a chosen institution to act as administering authority. That designation provides administrative support and a procedural framework throughout the proceedings......
What is arbitration? Arbitration is an alternative method of resolving disputes to litigation, in which parties refer their disagreement to an arbitrator, or a panel of arbitrators, to decide the matter instead of a court. It operates by consent, meaning it applies only where the parties agree that it should. Origins in England Arbitration developed from international and local tribunals created during the Middle Ages as substitutes for the royal courts. Merchants pressed for a different forum for commercial disputes because the royal courts were slow, ill-adapted to mercantile issues, and difficult to access for those not resident in England. A key characteristic of those tribunals was the relaxation or setting aside of strict formalities in commercial matters so that justice could be delivered swiftly. The practice later obtained a statutory footing in England when Parliament enacted the first Arbitration Act in 1698. Later statutes...
This Practice Note addresses the tribunal under the 2023 Arbitration Rules of the Stockholm Chamber of Commerce ( SCC) Arbitration Institute (the 2023 SCC Rules). The 2023 SCC Rules govern SCC arbitrations begun on or after 1 January 2023, unless the parties stipulate otherwise. The number of arbitrators The parties may determine how many arbitrators will hear an SCC arbitration (2023 SCC Rules, art 16(1)). In the absence of any agreement, the Board will decide whether the tribunal comprises one or three arbitrators, taking into account the case’s complexity, the amount in dispute and any other relevant circumstances (2023 SCC Rules, art 16(2)). Note that under the Expedited Rules, there is only one arbitrator—see Practice Note: SCC Rules (2023)—expedited procedure. Appointment of a sole arbitrator Where a sole arbitrator is to be appointed, the parties are afforded ten days to make a joint...
This Practice Note offers direction on forming the arbitral tribunal pursuant to the Hong Kong International Arbitration Centre ( HKIAC) Administered Arbitration Rules 2018 (the 2018 HKIAC Rules; HKIAC 2018). HKIAC likewise issues a Practice Note on Appointment of Arbitrators (effective 1 November 2018), describing HKIAC’s usual approach to appointing arbitrators in, inter alia, arbitrations administered by HKIAC under its Administered Arbitration Rules, with no indication of the version. If there is any inconsistency between this Practice Note and (a) the parties’ arbitration agreement or (b) the applicable arbitration rules or law, (a) or (b) will take precedence ( Practice Note on Appointment of Arbitrators, para 1.4). As outlined in Practice Note: HKIAC (2018)—the HKIAC Administered Arbitration Rules—application and key features, the 2018 HKIAC Rules generally govern HKIAC arbitrations commenced on or after 1 November 2018, unless the parties agree...
This Practice Note provides guidance on constituting the arbitral tribunal pursuant to the Hong Kong International Arbitration Centre ( HKIAC) Administered Arbitration Rules 2024 (the 2024 HKIAC Rules; HKIAC 2024). As explained in Practice Note: HKIAC (2024)—the HKIAC Administered Arbitration Rules—application and key features, the 2024 HKIAC Rules will, as a general position, govern HKIAC arbitrations begun on or after 1 June 2024, unless the parties agree to a different arrangement. For arbitrations initiated before 1 June 2024, the 2018 HKIAC Rules will typically apply, again subject to any contrary party agreement. HKIAC’s latest Practice Note on Appointment of Arbitrators (effective 28 September 2021) describes HKIAC’s usual approach to appointing arbitrators in, inter alia, arbitrations administered under its Administered Arbitration Rules, without specifying which edition of those rules. Where there is any conflict between that Practice Note and either (a) the parties’...
This Practice Notice explores how several causes of action can be brought together and resolved within one arbitration, with a particular emphasis on construction disputes. See also Practice Note: Multi-party and multi-contract arbitration—an introduction. Multi-party/multi-contract disputes Construction matters frequently include more than two participants. Typically, an employer contracts with a main contractor, who in turn sub-contracts elements of the works to various sub-contractors. Consequently, a web of linked construction contracts exists between different parties on a single project. When disagreements arise, multiple potential claims may sit under the separate contracts. A single dispute may draw in the employer, the main contractor, and several sub-contractors, suppliers and consultants. Where every contract falls within the court’s jurisdiction, the Civil Procedure Rules provide a straightforward route: the court will gather the connected claims into one set of proceedings through consolidation. By contrast, if some or all contracts contain an...
This Practice Note examines conflict of interest objections to arbitral appointments in international arbitration proceedings. It should be read alongside Practice Note: Conflicts of interest in arbitration—applicable principles. What are the main types of conflict of interest that pose a challenge in arbitration proceedings? Advocates and arbitrators from the same barristers’ chambers or law firm It is relatively common for advocates and arbitrators affiliated with the same barristers’ chambers and/or law firms to appear in a single matter, which can prompt a conflict of interest challenge. The International Bar Association Guidelines on Conflicts of Interest in International Arbitration (the IBA Guidelines, 2024 para 3.) include an ‘ Orange List’ addressing the ‘ Relationship between an arbitrator and another arbitrator or Counsel'. Orange List items must be disclosed to the parties, as they may give rise to justifiable doubts about an arbitrator’s impartiality and...
In 2021, the P. R. I. M. E. Finance Arbitration Rules were updated, and the 2022 edition took effect on 1 January 2022, applying to arbitrations commenced on or after that date (the P. R. I. M. E. Finance Rules; the Rules). The Rules also contain standard clauses and a model submission agreement. They set out a comprehensive framework for arbitration, including a model arbitration clause for contracts, a model submission agreement, procedures for commencing and conducting an arbitration, the process for appointing arbitrators, and provisions on issuing awards and allocating costs. The Rules are likewise intended to be flexible so that the arbitral tribunal can tailor proceedings as appropriate. This built-in flexibility enables the tribunal to shape the proceedings to the particular circumstances of the case. Arbitration clause A model arbitration clause is appended to the P. R. I. M. E. Finance Rules ( Annex A). When...
Introduction This Practice Note offers guidance on arbitrations run by the International and Ibero- American Arbitration Center of Madrid (‘ CIIAM’ or the ‘ Center’)—formerly CIAM- CIAR—pursuant to its Arbitration Rules effective from 1 January 2024. It covers procedural management issues spanning the choice of seat and language, evidentiary submissions, interim relief, third‑party funding, as well as multi‑party and multi‑contract cases within the framework of these Rules and proceedings. Seat and language of arbitration The Arbitration Rules permit the arbitral seat to be set in any location and, where there is no agreement, the Center will determine it after consulting the parties and considering the circumstances of the case ( Art 23.1). Choosing the seat is pivotal, as it fixes the procedural law and the scope of judicial scrutiny over the award. Madrid benefits from...
Under the Arbitration Act 1996 ( AA 1996) The AA 1996 empowers the English court to deploy a range of measures in support of the arbitral process. Those measures in particular include compelling a witness within the jurisdiction to attend an arbitral hearing to give evidence, or to produce documents for the purposes of the proceedings ( AA 1996, s 43). The court also has the authority to require a witness who is outside the jurisdiction to provide a deposition or otherwise to have their evidence taken ( AA 1996, s 44)—see Practice Note: AA 1996—interim and/or emergency relief—powers of the English court. Whereas AA 1996, s 43 is a mandatory provision (so its operation cannot be excluded by the parties’ agreement), AA 1996, s 44 is non‑mandatory and may have been expressly excluded in the parties’ arbitration agreement. The procedure under AA 1996, s 44...
Maritime arbitration organisations Many maritime disputes are resolved under the procedural frameworks of specialist maritime arbitration bodies, which advocate and circulate model arbitration clauses. In most cases, those bodies do not themselves run or supervise the proceedings. Historically, the principal centres have been London and New York. Yet, as trade has shifted from Europe and North America towards the Asia– Pacific, new institutions have emerged, notably in China ( Beijing and Shanghai) and in Singapore. The foremost organisations are the London Maritime Arbitrators Association ( LMAA), the Society of Maritime Arbitrators ( SMA), the China Maritime Arbitration Commission ( CMAC) and the Singapore Chamber of Maritime Arbitration ( SCMA). A synopsis of the current procedural rules for each appears in the table below. Comprehensive information about these bodies, including their panels of arbitrators and their rules, is available on their websites, which are...
This Practice Note addresses commencing arbitration under the 2023 Arbitration Rules of the Stockholm Chamber of Commerce ( SCC) Arbitration Institute (the 2023 SCC Rules). The 2023 SCC Rules govern SCC arbitrations begun on or after 1 January 2023, save where the parties stipulate otherwise. Considerations before filing a Request for Arbitration Pre-arbitration considerations The choice to initiate arbitration proceedings warrants careful reflection. Arbitration entails a significant investment of both time and funds, and prospective claimants are therefore advised to examine the issues with care before lodging a request for arbitration. Relevant matters include the following: has the claimant pursued all suitable pre-arbitration settlement avenues? does the claimant have strong prospects of success? This typically calls for an assessment of legal and factual matters. Do the applicable contractual and legal terms sustain the claimant’s position? Does the documentary and witness material underpin the...
This Practice Note offers guidance on initiating arbitration under the Hong Kong International Arbitration Centre ( HKIAC) Administered Arbitration Rules 2024 (the 2024 HKIAC Rules; HKIAC 2024). As outlined in Practice Note: HKIAC (2024)—the HKIAC Administered Arbitration Rules—application and key features, the 2024 HKIAC Rules generally govern HKIAC arbitrations begun on or after 1 June 2024, unless the parties agree otherwise; where proceedings began before 1 June 2024, the 2018 HKIAC Rules will usually apply, subject to any party agreement to the contrary. For an overview of HKIAC and its organisational framework, see Practice Note: HKIAC—background to and structure of the institution. How to commence an HKIAC arbitration The process for launching an arbitration under the 2024 HKIAC Rules aligns closely with other institutional regimes. A party wishing to commence arbitration (ie the claimant(s)) under the 2024 HKIAC Rules must...
Any mention of Articles in this Practice Note refers to the Articles of the Dubai International Arbitration Centre’s 2022 Arbitration Rules ( DIAC, the DIAC Rules). The arbitration shall be governed by the DIAC Rules in force at the time DIAC arbitration proceedings commence, together with any subsequent amendments to those Rules, unless the parties have expressly chosen to apply the DIAC Rules in effect on the date the underlying arbitration agreement was concluded ( Article 2.3). Prior to commencing an arbitration Before starting an arbitration under any institutional rules or on an ad hoc basis, reflect on the points below: does the arbitration clause you invoke encompass the whole of the dispute you intend to advance in these proceedings? have any pre-arbitration requirements been initiated, fully completed, and properly documented? are there any limitation matters and prima facie questions concerning contract law formation,...
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When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
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