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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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Publication and approval In this Practice Note, ‘bank’ denotes a UK institution authorised under Part 4A of the Financial Services and Markets Act 2000 ( FSMA 2000) to conduct the regulated activity of taking deposits (as defined by FSMA 2000, s 22, read with Schedule 2 and any order made under FSMA 2000, s 22). Any later references to ‘bank’ also cover a resolution company. Following the failure of Silicon Valley Bank, the government consulted on additional reforms and, in May 2025, enacted the Bank Resolution ( Recapitalisation) Act 2025 (see: LNB News 19/07/2024 30). These changes are not confined to smaller institutions: from 16 July 2025 they extend to banks of any scale (subject to meeting the other entry criteria) to enable recapitalisation of in-scope entities using FSCS monies rather than taxpayer funding, thereby lowering the likelihood that small bank failures give rise to calls on...
Practice Note In this Practice Note, the term ‘bank’ denotes a UK institution authorised under Part 4A of the Financial Services and Markets Act 2000 ( FSMA 2000) to undertake the regulated activity of accepting deposits (as defined by FSMA 2000, s 22, read with Schedule 2 and any order under FSMA 2000, s 22), and any mention of ‘bank’ below also covers a resolution company. In the wake of Silicon Valley Bank’s failure, the government consulted on additional reforms and, in May 2025, passed the Bank Resolution ( Recapitalisation) Act 2025 (see: LNB News 19/07/2024 30). These changes are not confined to smaller banks and, from 16 July 2025, apply to banks of any size, provided the other entry conditions are met (see Practice Note: Bank resolution reforms under the Bank Resolution (...
IP COMPLETION DAY: At 11pm ( GMT) on 31 December 2020, the Brexit transition/implementation period that followed the UK’s withdrawal from the EU comes to a close. In UK law this moment is termed ‘ IP completion day’. From that point, core transitional arrangements end and significant changes start to take effect across the UK’s legal framework. This note provides guidance on areas affected by these changes. Before continuing your research, see Practice Note: What does IP completion day mean for lending lawyers? [ Archived]. BREXIT: From 31 January 2020, the UK is no longer an EU Member State, but entered an implementation period during which, for many purposes, it continues to be treated by the EU as a Member State. As a third country, the UK cannot participate in the EU’s political institutions, agencies, offices, bodies and governance structures (except to the...
This Practice Note summarises the principal changes to the UK banking regime introduced by the Financial Services ( Banking Reform) Act 2013 ( FS( BR) A 2013), notably the ring-fencing provisions that segregate wholesale and investment banking services from retail banking services. It also captures amendments arising from the review of the UK ring-fencing framework and set out in the Financial Services and Markets Act 2000 ( Ring-fenced Bodies, Core Activities, Excluded Activities and Prohibitions) ( Amendment) Order 2025, SI 2025/30. For background to the review and an outline of the main reforms, see Practice Note: The post-reform ring-fencing regime—issues for financial institutions. Introduction to the Financial Services ( Banking Reform) Act 2013 FS( BR) A 2013 received Royal Assent on 18 December 2013. The Act aimed to strengthen the resilience of UK banks, limit the incidence of bank failures to ensure the...
Special resolution regime toolkit The Bank of England ( Bo E) leads the response when banks, building societies and designated investment firms supervised by the Prudential Regulation Authority ( PRA) fail, using a process called resolution, which is separate from insolvency, and is described in the Bank of England’s approach to resolution (published 15 December 2023). The Bo E will trigger resolution where intervention is required to safeguard financial stability. The framework does not aim to prevent all failures; rather, it ensures that, when they occur, they are managed in an orderly way that seeks to avoid deploying public money to prop up failed banks. Under the special resolution regime ( SRR), the most suitable tool must be chosen for resolving or winding up a failed bank, including combinations of tools where appropriate. Through secondary legislation implementing the Financial Services Act 2012 and the Bank...
The economic and legal backdrop Ordinary corporate insolvency regimes were ill-suited to troubled banks. Notably: the insolvency practitioners appointed to conduct proceedings were under no obligation to factor in broader public policy goals connected to preserving overall financial stability banks are exposed to crises of confidence, so swift resolution and prompt intervention are particularly critical depositors, unlike the creditors of an industrial firm: are many in number are not professional market actors, and whose claims on the bank, as ‘money’, play a significant role in the broader functioning of the economy a banking failure can generate very serious external effects for the overall stability of the financial system Before the measures outlined in this Practice Note were...
Aircraft represent high-value assets, vulnerable to damage and capable of causing significant destruction. Securing appropriate insurance is therefore essential for financiers; policy wording and its legal impact often warrant closer scrutiny than is usual in other forms of asset finance. This Practice Note addresses insurance where an aircraft owner, as lessor, leases an aircraft to an airline as lessee. If a bank or other lender has financed the aircraft, the matters identified as relevant to a lessor will likewise apply to the aircraft financier. This is because, in many aviation finance structures, the financier will typically take security over the lessor’s rights against the lessee under the lease... The nature of insurance contracts An insurance contract is an agreement to indemnify against loss arising from specified perils (for example, loss resulting from damage to, or destruction of, the insured asset). The contract is formed between the...
STOP PRESS: On 21 April 2026, the Commission signed off two delegated regulations under the ESG Ratings Regulation. The first sets regulatory technical standards ( RTS) detailing which elements of ESG rating products must be made public and shared with users of ESG ratings, rated items and the issuers of those items. The second lays down RTS on the controls and safeguards ESG rating providers must put in place to ring‑fence their rating work from any other business. Each will take effect on the twentieth day after publication in the Official Journal of the European Union, and will apply from 2 July 2026. This Practice Note offers a high-level survey of the framework and policy aims shaping sustainable finance across the UK and the EU. It is designed to complement Practice Note: Introductory guide to sustainable finance and ESG for finance lawyers, and it does not...
Practice Note This Practice Note offers an overview of the principal aspects of competition law, tailored for in-house banking and finance counsel. Firms should implement robust policies and procedures to prevent breaches, alongside ongoing training for any teams likely to face competition law matters, with regular refreshers for relevant personnel. Where no internal expertise exists, institutions ought to seek advice from an external competition law team to verify compliance, ensure the institution is not in breach, and to help establish appropriate policies and procedures. The banking industry has also faced heightened scrutiny following enforcement by the European Commission. These actions underline the importance of proactive compliance across the sector. In 2021, for instance, the Commission levied substantial fines on banks in the following matters: Euro interest rate derivatives ( AT.39914) Yen interest rate derivatives ( AT.39861) Foreign exchange spot trading (...
This FLASHCARD is intended to help you absorb and recall the key points on the UK regime for alternative investment funds ( AIFs) and their managers, derived from the Alternative Investment Fund Managers Directive ( AIFMD) ( Directive 2011/61/ EU). What is the AIFMD? The Alternative Investment Fund Managers Directive 2011/61/ EU ( AIFMD) came into effect on 21 July 2011 and had to be implemented by EU Member States by 22 July 2013. It sets out a comprehensive regulatory framework for alternative investment fund managers ( AIFMs) that market or manage AIFs—such as hedge funds, private equity funds, and real estate investment funds—within the EU. How was the AIFMD implemented in the UK? In the UK, implementation combined HM Treasury statutory instruments with rules and guidance in the Financial Conduct Authority ( FCA) Handbook. The principal UK regulation transposing the AIFMD was the...
This Practice Note explores the position of depositaries under the UK framework that transposes the Alternative Investment Fund Managers Directive ( Directive 2011/61/ EU) ( AIFMD). It examines the depositary obligations within the UK AIFM regime, setting out which UK entities can serve as a depositary, the scope of their functions (including oversight), and the rules on delegation, liability, and the depositary agreement. For details on the parallel EU regime, see Practice Note: EU AIFMD—depositaries. UK implementation of AIFMD depositary requirements The AIFMD has been given effect in the UK through a blend of primary legislation in the Financial Services and Markets Act 2000 ( FSMA 2000), secondary legislation—principally the Alternative Investment Fund Managers Regulations 2013, SI 2013/1773 ( AIFM UK Regulations)—and rules made by the Financial Conduct Authority ( FCA) across its Handbook, chiefly in the Investment Funds sourcebook ( FUND). Within the FCA...
This Practice Note sets out how prospectuses are approved under the UK public offers and admissions to trading regime that took effect on 19 January 2026. It concentrates on the obligations as they apply to the debt capital markets. For further detail on the regulatory architecture of the new regime and the principal provisions affecting debt capital markets, see Practice Note: The new UK public offers and admissions to trading regime—essentials. For guidance on the practical consequences for debt capital markets deals, see Practice Note: The new UK public offers and admissions to trading regime—key practice points for debt capital markets. In summary A refreshed regulatory regime for public offers and admissions to trading of securities in the UK—covering when a prospectus is needed and what it must contain—commenced on 19 January 2026, supplanting the earlier EU law‑derived framework. From 19 January 2026,...
The UCITS framework The UCITS Directive sets out a comprehensive, harmonised regime for investment funds available to retail investors across the EU. As a result, a fund authorised in one Member State can be promoted in another via a passporting system. This cross-border access operates through a passport that enables distribution beyond the home Member State. First enacted back in 1985 through the original UCITS Directive ( EC) 85/11 ( UCITS Directive), the rules have undergone multiple updates, the latest being UCITS V Directive 2014/91/ EU ( UCITS V), effective from 18 March 2016. UCITS V is intended to align the UCITS landscape with the Alternative Investment Fund Managers Directive 2011/61/ EU AIFMD ( AIFMD) in relation to remuneration and depositary requirements, and to roll out complementary measures: it sets out the responsibilities of the depositary, requires remuneration policies for key personnel of the UCITS...
This Practice Note explores the regulation of key investor information documents ( KIIDs) under Articles 78–82 of Directive 2009/65/ EC (the UCITS Directive), Chapter 4 of the FCA Handbook on Collective Investment Schemes ( COLL 4), and Regulation ( EU) 583/2010 (the KII Regulation), which prescribes in granular detail how a KIID must be presented. Form and substance of the KIID Layout and order of sections Ways of supplying a KIID to investors Consequences of non-compliance Following the Brexit transition period, the KII Regulation has been retained in the UK with onshoring changes to ensure the regime functions in the UK, as set out in Retained Regulation ( EU) 583/2010 (the text is reproduced in COLL Appendix 1 UK KII Regulation). For further information on UCITS investor information—covering prospectus, annual report, and valuation and pricing details—see Practice Note: Key provisions of...
Loan market and developments At the start, it is important to recognise that engaging with a specific Emirate in the United Arab Emirates ( UAE) requires consideration of both Federal laws and the rules of the relevant Emirate. Moreover, the UAE contains multiple free zones, each of which may apply its own legal regime; the Dubai International Financial Centre ( DIFC) and Abu Dhabi Global Market ( ADGM) are the most notable. Consequently, before entering into any arrangements linked to a particular free zone, tailored advice should be sought. Robust domestic economic conditions have underpinned the UAE banking sector’s expansion over the past couple of years. Fuelled by strong credit appetite from consumers, corporates and financial institutions, lending continues to rise, with increases across both retail and corporate lending. This trajectory is expected to endure despite regional geopolitical headwinds and oil price swings. Many...
How is a credit event determined? Article 4 of the 2014 ISDA Credit Derivative Definitions (the 2014 Definitions) outlines the types of credit event that may arise. However, the mere occurrence of one of these events does not automatically trigger obligations under a credit derivative—certain procedural formalities must also be met. See Practice Notes: Credit derivatives—credit events and Restructuring credit event. Since 2009, the ISDA Credit Derivatives Determinations Committee (the DC) has decided the majority of credit events. Any eligible market participant may submit a credit event resolution request to ISDA regarding an affected reference entity under the 2014 Definitions. Accordingly, if you consider that a credit event has occurred for a reference entity named in a credit derivative to which a party is committed, that party can ask the DC to confirm publicly that a credit event has taken place. When parties choose to apply the 2014...
A common restructuring technique is to shift a company’s assets or business into a newly incorporated company ( Newco). In practice, the stronger assets and business lines are carved out and transferred to Newco. In exchange for compromising or cancelling their debt claims against the company (and the rest of the group), financial creditors may swap: debt in the company for debt in Newco debt in the company for equity in Newco debt in the company for a mix of debt and equity in Newco The transfer reduces or eliminates liabilities on the company’s balance sheet. In debt-for-equity swaps, it enables creditors to participate in any upside after the restructuring—once Newco generates profit, equity holders may receive dividends when there are sufficient distributable reserves—or on any later sale (see Practice Note: Debt for equity swaps). Securing a robust valuation is...
Transferring a loan by assignment This Practice Note outlines a principal route for a lender to pass a loan under English law to another lender: assignment. Other principal methods are: novation — see Practice Note: Transferring a loan by novation sub-participation or risk–participation — see Practice Note: Selling a loan by sub-participation A loan (as a debt) is a chose in action. A chose in action is a right that is enforced through legal proceedings, rather than something held physically. As a general position, choses in action are not assignable at common law. Consequently, assignments of choses in action are either: statutory — often described as ‘legal’ assignments because they produce an equivalent effect to legal assignments equitable Under English law, an assignment transfers rights only; it does not transmit obligations (unlike a novation — see Practice Note:...
This Practice Note sets out the key stages of a securitisation and complements other practical guidance on the topic. What is securitisation? Securitisation is a financing method that turns illiquid assets into tradable securities. It involves pooling income‑generating assets—such as loans, mortgages or credit card receivables—and repackaging them into interest‑bearing instruments for sale to investors. the originator (eg a financial institution) that creates the assets underpinning the securitisation; a special purpose vehicle, a separate legal entity used to isolate the originator’s financial risk; investment banks that structure the deal and the securities and manage regulatory compliance; investors who buy the securities. For an introduction to securitisation—its types, typical assets, key parties and documents—see Introductory guide to securitisation. For the UK and EU regimes, see Practice Notes: The UK securitisation regime and EU Securitisation...
What does this Practice Note cover? This Practice Note addresses how over-the-counter ( OTC) derivatives are traded on electronic trading platforms ( ETPs) and sets out: the methods by which OTC derivatives can be executed the drivers behind the growth of OTC trading on ETPs the categories of OTC derivatives capable of being traded on ETPs, and the documentation needed to trade OTC derivatives on ETPs What are the different methods of trading OTC derivatives? OTC derivatives can be transacted through several channels, including: voice execution electronic trading platforms ( ETPs) hybrid systems Voice execution An OTC derivative is a bilateral agreement. Historically, such contracts were discussed and concluded either directly between the two parties or via a broker, using voice execution—that is, by telephone or internet messaging. By comparison, exchange traded derivatives ( ETDs) have been, and remain, dealt...
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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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