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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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A secondary buyout ( SBO) A secondary buyout ( SBO) occurs when private equity finances the purchase of a company that has already undergone a prior buyout. They provide one route for private equity funds to realise and exit an existing buyout position. In an SBO the current private equity house sells out, yet the target's management typically remains in post following completion, albeit some managers may depart and be replaced, or, more rarely, a wholesale change of management may occur. Managers who continue are usually required to sell the interests they acquired in the target vehicle under the earlier buyout, receiving consideration from the new private equity backer. Accordingly, continuing managers dispose of the interests they previously acquired in the target vehicle and accept the consideration proposed by the incoming investor. They then participate, to some extent, by acquiring interests in the vehicle used to...
What is second lien financing? Second lien financing describes funding that is principally backed by the same collateral package as senior or first‑ranking borrowings, yet it generally sits behind that senior or first‑ranking debt on a second‑ranking basis, whether in terms of payment priority and/or security (for more detail, see the Intercreditor position section below). It operates as a tranche of borrowing positioned between senior bank facilities and other junior or subordinated indebtedness within a leveraged buy‑out. Second lien borrowings are most often structured as term loans (or issued as notes in the US). The investor base for second lien instruments is typically institutional investors, encompassing funds that allocate to leveraged loans, collateralised loan obligations ( CLOs), hedge funds, and other specialist debt funds......
STOP PRESS : The Moveable Transactions ( Scotland) Act 2023 (the Act) took effect on 1 April 2025, together with the following connected regulations: The Moveable Transactions ( Register of Assignations and Register of Statutory Pledges Rules) ( Scotland) Regulations 2024, SSI 2024/381, which set out rules for the Register of Assignations and the Register of Statutory Pledges under the Act; The Moveable Transactions ( Forms) ( Scotland) Regulations 2024, SSI 2024/379, prescribing the form of a pledge enforcement notice and the form of a correction demand under the Act; The Moveable Transactions ( Scotland) Act 2023 ( Financial Collateral Arrangements and Financial Instruments) ( Consequential Provisions and Modifications) Order 2025, SSI 2025/275, bringing financial collateral arrangements and financial instruments within the scope of the reforms; The Registers of Scotland ( Fees and Plain Copies) Miscellaneous Amendments Order 2025, SSI...
Loan market and developments Overview Broadly, Scotland’s loan market mirrors that of England. Financial services regulation operates on a UK‑wide basis; a substantial body of legislation governing companies and other corporate vehicles (including corporate insolvency) likewise applies across the UK; and all Scottish clearing banks conduct business in every UK jurisdiction, as do their counterparts across the UK. In practical terms, this means English law governed loan documents typically require minimal amendment for UK cross‑border lending transactions. There are, however, some differences in terminology and certain statutory variations that must be allowed for; beyond those matters, an English law loan document and a Scots law loan document are closely aligned. It is commonplace, for example, for English law loan agreements to be deployed in Scottish lending transactions. The principal divergences between the jurisdictions arise in relation to property law and to the law...
ARCHIVED: This Practice Note has been archived and is no longer updated. It is provided for background information only. Introduction Despite its title, the Small Business, Enterprise and Employment Act 2015 ( SBEEA 2015) has general effect across UK companies, not just small and medium-sized enterprises. While the Act chiefly concerns corporate matters and company administration, certain elements may influence financing transactions and warrant attention from finance practitioners. These include: the abolition of bearer shares powers enabling the override of prohibitions on invoice assignment modifications to the powers of the Export Credits Guarantee Department ( ECGD) adjustments to administrators’ and liquidators’ powers with implications for insolvency and restructuring practice streamlining of public procurement processes changes to company administration The SBEEA 2015 received Royal Assent on 26 March 2015 and is being brought into force in stages. For the timetable indicating when specific provisions commence, see Practice Note: The Small Business,...
Loan market and developments A concise outline of the present condition of the loan markets in this jurisdiction and key recent developments is set out below. Saudi Arabia’s lending landscape appears comparatively insulated from challenges troubling financiers in other regions, partly owing to the adoption of core Basel III measures, encompassing leverage, liquidity and capital adequacy ratios, all of which are closely supervised by the Saudi Central Bank ( SAMA). Another contributing factor is that borrowing is generally not credit-led, but is instead strongly anchored in the provision of security. Whatever the drivers, the domestic market remains notably robust, with rising investment both within the Kingdom and from overseas. An extensive range of credit options exists: commercial bank facilities offering low rates to personal and corporate customers, and medium to long-term funding from bodies such as the Islamic Development Bank and the Saudi...
This Practice Note looks at: the challenges sanctions may create for lending transactions key facility agreement terms to consider in a sanctions context the approach to sanctions of the Loan Market Association ( LMA) and the Loan Syndications and Trading Association ( LSTA) the effects of the EU Blocking Regulation Conflict in Ukraine Focus on sanctions has intensified following additional measures introduced in response to the conflict in Ukraine. We have issued the Practice Note: Sanctions— FAQ for banking & finance lawyers, which examines those measures and the potential effects on finance transactions and loan agreements. It also includes links to detailed material. See also the Financial sanctions collection featuring Practice Notes, news and trackers. The remainder of this Practice Note considers more general points when drafting sanctions provisions in loan agreements. Where can I find information on financial sanctions? Our Financial sanctions collection is a...
Sanctions designations are a principal tool through which the UN, the UK and the EU restrict the conduct of individuals and entities linked to threats to international peace, security, or other stated objectives. Once a person is listed, measures—most often asset freezes and curbs on providing funds or economic resources—apply automatically. In the UK, ministers are empowered to create and operate sanctions regimes under the Sanctions and Anti- Money Laundering Act 2018 ( SAMLA 2018). Internationally, the UN Security Council identifies targets via its listing procedures, while the EU adopts both UN-mandated and EU‑autonomous measures using its own legislative processes. This Practice Note outlines how designations work across these systems, the consequences for those subject to restrictions, and the routes available to challenge or seek removal from a list. For information about SAMLA 2018, see Practice Notes:...
This Practice Note reviews the principal finance participants actively engaged in a syndicated loan arrangement or syndicated loan facility. It examines the functions and obligations of the arranging bank, facility agent, security agent (also called the security trustee), the syndicate lenders and the issuing bank(s), with specific reference to the Loan Market Association ( LMA) loan documentation forms. Loan Market Association documentation The LMA is the leading organisation within the European, Middle Eastern and African ( EMEA) syndicated loan market across the region. Its aim is to enhance liquidity, efficiency and transparency across the primary and secondary syndicated loan markets. LMA documentation is developed following wide consultation with prominent loan practitioners and law firms, to reflect a shared consensus on documentation structures......
An introduction to RMBS This Practice Note outlines the framework of residential mortgage-backed securities ( RMBS) transactions, highlighting the principal participants, documentation and terminology involved. As with other financing methods and transactions, there are many ways in which the precise terms of any given deal may operate; these variations fall outside the scope of this Practice Note. It summarises the structure of such transactions and the principal parties, documents and terms they typically involve. Residential mortgage-backed securities ( RMBS) are debt instruments whereby income generated by one or more pools of residential loans (loans) is applied to fund payments of interest and principal owed to noteholders. Security is taken over those loans and their related mortgages, which serve as collateral for amounts payable on the notes. RMBS transactions can be relatively simple pass-through instruments, or they can be complex, involving numerous parties and arranged in...
Types of valuation for R& I lawyers Pinpointing where the value breaks shapes any restructuring and dictates who occupies a place at the negotiating table (see Practice Notes: Where the value breaks and negotiating strength and Blocking majorities). Different creditor constituencies may commission their own valuations because these figures drive their eventual recoveries. With no statute prescribing a single methodology, parties must lean on intermittent court guidance. That uncertainty predictably spurs creditor challenges, as stakeholders select valuations that support the most favourable result for them. As a rule, using a number of techniques to produce a valuation range is sensible. In practice, applying more than one method helps triangulate the value range. Going-concern basis versus liquidation basis versus indicative bids A going concern basis (also called enterprise or firm value) assumes the debtor company continues to trade. The three principal approaches are: ...
The Corporate Insolvency and Governance Act 2020 ( CIGA 2020) introduced a new restructuring device: the restructuring plan under Part 26A of the Companies Act 2006 (see Practice Note: Part 26A restructuring plans). Although it broadly follows the established schemes of arrangement process, there are significant differences, including the introduction of cross-class cram down ( CCCD) (see Checklist: Differences between restructuring plans, schemes of arrangement, and CVAs and Practice Note: Cross- Class Cram Down under a Part 26A restructuring plan). For an in-depth review of key metrics from 2024 RPs—covering instances where CCCD has been applied—and insights from leading restructuring practitioners, see News Analysis: Market Insights Trend Report—trends in Part 26A restructuring plans in 2024. Below we consider some frequently asked questions ( FAQs) on the restructuring plan. Can restructuring plans be used for small to medium enterprises (...
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 are representations and warranties? A representation is a pre‑contractual statement of fact from one contracting party, intended to induce the other to enter the contract. If that statement is false or misleading, it can found a claim for misrepresentation under general law, with remedies of rescission and/or damages depending on the type of misrepresentation (see Practice Note: Misrepresentation—what it is and similar claims). A warranty, by contrast, is a contractual term which, if breached, gives rise to damages but not a right to rescind the contract. In subscription and programme agreements, as with other finance documents, formal confirmations that a particular state of affairs exists are grouped together under the composite label ‘representations and warranties’. In principle this may widen the remedies potentially available to managers or dealers; however, in practice they are more likely to rely on the specific...
This Practice Note offers a concise primer on repackagings. For links to resources with deeper guidance on particular aspects of repackaging transactions, see: Further information. What are repackagings? Repackagings constitute a form of asset-backed security ( ABS), i.e. a limited recourse debt instrument issued by a bankruptcy-remote special purpose vehicle ( SPV) and secured against a financial asset or a pool of financial assets. The objective of a repackaging is to deliver a bespoke ABS investment with a blend of credit, currency, interest rate and/or payment date features that are otherwise unavailable to the investor. Typically, a repackaging ABS issue is held to maturity by a single investor and may have been prompted by a reverse enquiry from that investor. What is an asset swap repackaging? Asset swap The most straightforward and most common variety of repackaging is an asset swap repackaging (or asset swap repack). An asset swap is a...
This Practice Note explores the principles underpinning rent review provisions. For further help on drafting and negotiating rent review clauses, consult Practice Notes: Negotiation guide—rent review clauses—commercial leases and Drafting index—linked rent review clauses. Onerous provisions Before turning to the rent review clause itself, remember that other terms in a lease can influence the figure reached at review. Hard-won points in negotiation may carry unwelcome consequences when the rent is reassessed. In a soft market, the inclusion of onerous provisions can completely erode the uplift that a more balanced lease might otherwise secure. In a rising market, a well-advised tenant aiming to curb increases at review will press for a discount to reflect unfair or burdensome obligations. Some provisions are consistently viewed as onerous, while others change their character and effect with prevailing market conditions. The following are the terms most likely to be relied upon by...
STOP PRESS ECCTA 2023 introduces identity verification for anyone submitting filings at Companies House. This is expected to become mandatory from November 2026. See: Registering Security at Companies House—changes under ECCTA 2023 for further details and timing. STOP PRESS On 16 March 2026, Companies House announced that on Friday 13 March it had been alerted to a security issue. A logged-in Web Filing user could, after following a specific sequence of actions, potentially view and amend certain elements of another company’s information without consent. Companies House has said that existing filed documents—such as accounts or confirmation statements—could not have been changed. There is, however, a risk that some personal data may have been accessed and that unauthorised submissions may have been made. Although information is currently limited, this could include, for example, a satisfaction of charge filing. Companies House has advised companies to review their...
This Practice Note This Practice Note outlines procedures for handling the release of security over commercial (rather than residential) property and the matters to consider when redeeming a commercial mortgage. In residential conveyancing, most deals complete using the Law Society’s Code for Completion by Post (the Code), which includes an undertaking by the seller’s solicitor to redeem the seller’s mortgage on the property. Although the Code is stated to apply to both residential and commercial transactions, it will not always be suitable either to give the undertakings in the Code or to rely on them for the release of security over the property. A departure from the Code’s terms may need to be negotiated depending on the transaction. This Practice Note proceeds on the basis that the buyer and/or the buyer’s lender requires the seller’s mortgage to be discharged on...
This Practice Note reviews the statutory and regulatory framework for UK trading venues, covering the recognised investment exchange ( RIE) regime and pertinent elements of Assimilated Regulation ( EU) 600/2014 ( UK Mi FIR) plus the Financial Conduct Authority ( FCA) Handbook. In the UK, oversight of regulated markets ( RMs) operates via the RIE regime, first set up under the Financial Services Act 1986 ( FSA 1986) and subsequently revised by the Financial Services and Markets Act 2000 ( FSMA 2000). The recognition framework and duties for investment exchanges appear in FSMA 2000, Part XVIII, and in the Financial Services and Markets Act 2000 ( Recognition Requirements for Investment Exchanges and Clearing Houses) Regulations 2001, SI 2001/995, as amended (the Recognition Requirements Regulations). For further detail on the RIE regime, see Practice Note: Recognised investment...
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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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