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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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On 1 August 2022, the register for overseas entities came into operation. Any overseas entities intending to purchase, dispose of, transfer, or mortgage land or property in the UK were required to enrol with Companies House and state their registrable beneficial owners or managing officers by 31 January 2023 (thereby marking the formal close of the register’s transitional period). Separately, it should be noted that an overseas company must also be recorded at Companies House if it sets up an ‘establishment’ in the UK. An establishment means a branch within the terms of the Eleventh Company Law Directive, or a place of business that is not a branch. That filing obligation arises under the Overseas Companies Regulations 2009. It is wholly separate and distinct from the regime outlined here concerning overseas entities that hold property in the UK. For more detailed...
Introduction to the legislation The Economic Crime ( Transparency and Enforcement) Act 2022 ( EC( TE) A 2022) gained Royal Assent on 15 March 2022. Its aims are: to stop the UK property market being used to shelter, hide or launder criminal proceeds and wealth; to secure greater openness about the ultimate owners of assets and property held in the UK; and to make it simpler for enforcement bodies to deprive owners of assets acquired unlawfully. It sat alongside proposals to reform and better resource Companies House to enhance transparency of UK corporate entities, which culminated in the Economic Crime and Corporate Transparency Act 2023 (see Practice Notes: The Economic Crime and Corporate Transparency Act 2023—tracker and The Economic Crime and Corporate Transparency Act 2023—what Banking & Finance lawyers need to know). Sections 1–44 ( Part 1) of EC( TE) A 2022 created the...
This FLASHCARD is designed to help you take in and retrieve the essential points on the recognition of UK central counterparties ( CCPs) under Regulation ( EU) 648/2012 ( EU EMIR). How did Brexit affect the EU market for clearing services? Before Brexit, three UK CCPs— London Clearing House ( LCH), LME Clear and ICE Clear Europe—held a dominant role in the EU market for derivatives clearing. As at June 2017, it was estimated that UK CCPs cleared roughly 90% of euro-denominated interest rate swaps for euro area counterparties, and 40% of their euro-denominated credit default swaps. When the implementation period ended on 31 December 2020, UK CCPs were no longer under EU supervision and became third country CCPs for the purposes of EU EMIR. Article 25(1) of EU EMIR provides that a......
Receivables The term ‘receivables’ is commonly used to mean book debts, though, in strict usage, book debts is the narrower concept, referring to debts accruing in the ordinary course of trade that are usually entered in a company’s trade books. A receivable has a broader reach than a ‘book debt’ and covers: book debts the right to receive a payment under a loan agreement rights to payments under contracts rights to refunds of tax All other liquidated monetary claims of the security provider are captured by the expression ‘receivable’. In many cases, a substantial portion of the value in a security package resides in receivables owed to the security provider. Determining how best to realise that value is a pivotal element of any enforcement strategy. Collection by a receiver or administrator, once appointed, is a common approach. Where there is a large portfolio of debts that may take...
A large proportion of the standard conditions precedent ( CPs) for a typical syndicated loan will also commonly be applicable to a real estate finance transaction. For information on those conditions precedent, see Practice Note: Conditions precedent. This Practice Note concentrates on the real estate finance–specific conditions precedent that typically arise in a real estate finance investment transaction. For development facilities, additional conditions precedent must be satisfied and the drawdown mechanics are different. These requirements reflect the fact that the property being purchased will be developed over the term of the facility, and the lender will need to approve the development plans before any funding is released. For more information, see Practice Note: Real estate finance—conditions precedent and the mechanics of drawdown in development facilities. Purpose of conditions precedent Conditions precedent are included in finance documents for the benefit and protection of lenders,...
Many of the standard covenants found in a conventional syndicated loan facility will likewise apply to a real estate finance investment transaction. For guidance on those provisions, including an explanation of what covenants are and the reasons they are employed, see Practice Note: Covenants; that resource explains their purpose and operation. This Practice Note focuses on the particular covenants that are commonly seen in a real estate finance investment transaction, and it concentrates on investment deals in the property finance sphere. Additional covenants must be observed in real estate finance development facilities, and compliance with these additional undertakings is required. These arise because the property financed will be developed during the term of the facility agreement, over the whole duration agreed between the parties. For further detail, see Practice Note: Real estate finance—covenants in development facilities for a fuller...
Real estate finance investment facilities provide a loan to a borrower to acquire a single property or a portfolio (or to refinance an earlier acquisition). Security is taken over the asset being acquired (or refinanced) and over the cashflow it produces (ie rental receipts). Property-related due diligence is among the most critical elements of the deal before funds are advanced. Ensuring the property’s value and condition are preserved for the duration of the loan is likewise essential. Bank account mechanics are central to real estate finance investment deals and can be relatively intricate. In a simple structure, tenants pay rent into a secured account, which is applied to service interest and repay capital on the facility. Surplus monies may then be swept to the borrower’s current account and drawn by the borrower. This Practice Note sets out the principal features of a...
In real estate finance deals, the facility offered is typically a committed facility, and the facility agreement specifies precisely how and when it must be repaid. That agreement will also indicate: whether the borrower may repay before the scheduled repayment date(s) (that is, make voluntary prepayments), together with any conditions for such prepayments, including threshold sums or charges, and whether any circumstances trigger an obligation on the borrower to repay all or part of the facility ahead of schedule (that is, make mandatory prepayments) Many provisions on voluntary and mandatory prepayment, repayment and cancellation in a standard syndicated loan facility mirror those used in a real estate finance context. For further detail, see Practice Note: Repayment, prepayment and cancellation. This Practice Note explores the voluntary and mandatory prepayment, repayment and cancellation terms that may apply specifically to real estate...
In real estate finance deals that incorporate hedging, a range of documentation points must be carefully addressed so the facility papers and the hedging terms are properly consistent and aligned. In addition, intercreditor matters arise, including the ranking of the hedging counterparty within the security package, who holds decision‑making powers under the facility agreement, and the practical consequences this has for the hedging counterparty in practice. Why is hedging used in real estate finance? Real estate finance structures and hedging Within a real estate finance arrangement, the borrower is commonly a special purpose vehicle ( SPV) formed for the purpose of owning a property or a portfolio of properties. Typically, it has no income stream other than the rental income received from the property. For more information, see Practice Note: Introduction to real estate finance-the lending structure— Structure of a typical real estate finance...
Building Safety Act 2022 ( BSA 2022) The Building Safety Bill gained Royal Assent on 28 April 2022, becoming the Building Safety Act 2022 ( BSA 2022). Although the reforms carry particular weight for construction lawyers, the legislation is equally significant for banking and finance lawyers operating on real estate finance mandates and other finance transactions that involve property or counterparties engaged in real estate development. As a result, banking and finance lawyers must acquaint themselves with key elements of the BSA 2022 to appreciate: the impact of the new duties and liabilities under the BSA 2022 on their borrower and developer clients; and the possibility that lenders could fall within the BSA 2022 provisions concerning responsibility for defective buildings and the expense of putting right defective building works The BSA 2022 will, in particular, influence a wide range of new real estate...
Development documentation sits at the heart of any real estate finance deal that involves building out a site. These papers set out the scope of the scheme, define how the project team interacts, allocate duties, and fix the expected costs. The worth of a property can be heavily undermined if the construction works are left unfinished. It is in the funder’s interests, just as much as the borrower’s, that a scheme is delivered on programme and within budget. Commonly, the lender takes security over the borrower’s contractual rights under the principal development agreements by taking an assignment for security purposes, which enables the lender, should problems emerge with the borrower, to call upon the counterparty to step in and carry out the contract obligations to completion, as clearly set out therein......
Building Safety Act 2022: The Building Safety Act 2022 ( BSA 2022) brought in sweeping changes to the legal and regulatory framework governing building safety. Although these reforms are crucial for construction practitioners, the Act is equally pertinent to banking and finance lawyers working on real estate development finance deals. For further detail, see Practice Note: Building Safety Act 2022—implications for finance transactions involving real estate and real estate development. Real estate development finance facilities typically provide a loan enabling a borrower to acquire and develop a property (or portfolio), or to carry out development on assets it already owns. Such funding is secured over the property, the suite of development documents, and the future cashflow generated by the asset (for example, rental income) once the whole or part of the scheme has reached completion. Thorough due diligence on the property and the proposed scheme is a...
The development of property can be carried out by different procurement methods. For further details and context, see Practice Note: Real estate development finance—introductory guide to forms of procurement. The principal procurement routes commonly used to deliver a property development scheme are as follows: design and build procurement traditional procurement management contracting Across the UK, design and build is the procurement route most often chosen. The selected route shapes both the scope and substance of the development documentation for the scheme. Such documentation is central to any real estate finance deal that entails property development activity. This Practice Note outlines and explains the core development documentation involved, namely the following: the building contract parent company guarantees and bonds the sub-contracts (which may include sub-contracts for design, in design and build procurement) the professional consultant appointments the insurances collateral warranties (or third party rights), and planning permission In practice, a lender will commonly require security over the...
Q& As relating to the Loan Market Association ( LMA) and its documentation Relevant Q& As 3 June 2024 — Is it customary and enforceable to levy compounded default interest on overdue principal and interest, or only on overdue principal? This Q& A explores whether a loan may charge compounded default interest on both overdue principal and unpaid interest, or if it must be confined to overdue principal. It references the default interest provisions in Clause 11.4 of the LMA investment grade facility agreement. 23 November 2021 — When preparing a multicurrency facilities agreement, can the recommended Sterling loan conventions be applied to loans in other currencies? This Q& A assesses if the conventions recommended for Sterling loans are appropriate for other...
Note on public procurement post- Brexit The Implementation Period provided by the EU– UK Withdrawal Agreement concluded at 11:00 pm GMT on 31 December 2020 ( IP Completion Day). From that point, the modifications made by the Public Procurement ( Amendment etc) ( EU Exit) Regulations 2020, SI 2020/1319, to the body of EU-derived public procurement rules have taken effect, save for the changes identified in Regulations 7, 9, 11 and 16. This Practice Note has been revised to reflect those post- Brexit developments. The UK government has also issued high-level guidance on public procurement after IP Completion Day, namely: Public procurement policy and Public-sector procurement. Overview Public Private Partnerships Public Private Partnerships ( PPPs) are intended to drive efficiency in public services by allocating risk appropriately and drawing upon private sector know-how. Access to private finance can likewise ease the burden on public funding, which is under...
These training resources comprise template Power Point slides designed to act as the foundation for one or more seminars focused on providing legal opinions in loan transactions. It is expected that trainers will take these slides as a useful starting point for their presentations, tailoring and refining them to fit their delivery and audience......
This Practice Note sets out the prospectus requirements under the UK public offers and admissions to trading regime that took effect on 19 January 2026, with a particular emphasis on debt capital markets. For a broader overview of the regulatory framework and the principal provisions relevant to debt capital markets, see Practice Note: The new UK public offers and admissions to trading regime—essentials. For guidance on the practical impact for debt capital markets transactions, see Practice Note: The new UK public offers and admissions to trading regime—key practice points for debt capital markets. In summary A new UK regime now governs public offers and admissions to trading of securities, including when a prospectus is required and what it must contain, commencing on 19 January 2026 and replacing the earlier EU law-derived framework. From that date, the following were revoked: Assimilated Regulation ( EU)...
ARCHIVED: This Practice Note has been archived; it is no longer maintained and is supplied for background reference only. For further information concerning the Prospectus Regulation, please see the Practice Note titled The UK Prospectus Regulation—essentials [ Archived]. Introduction to the Prospectus Regulation and Prospectus Directive comparison and analysis The Prospectus Regulation ( EU) 2017/1129 ( PR) was released in the Official Journal ( OJ) of the European Union ( EU) on 30 June 2017, with certain elements coming into legal effect on 20 July......
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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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