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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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What is a credit linked note? A credit linked note ( CLN) is a funded credit derivative (see Practice Note: What are credit derivatives?). Unlike a credit default swap—essentially its unfunded counterpart—a CLN sits on the issuer’s balance sheet. Its value is driven by the credit risk of a third party, known as the ‘reference entity’. In its simplest form, the issuing entity (the protection buyer) issues a note; on the issue date the noteholder (or protection seller) pays the face amount and then receives an agreed return until either a credit event occurs in relation to the reference entity or the note reaches maturity. A CLN allows an investor to obtain the returns of a potentially risky reference entity without owning that entity directly. Who issues and buys credit linked notes? CLNs are generally issued by special purpose vehicles or financial...
This Practice Note reviews the law on registering security created on or after 6 April 2013 by a company or limited liability partnership ( LLP) registered in Scotland. The framework is set out in Part 25 of the Companies Act 2006 ( CA 2006), given effect by the Companies Act 2006 ( Amendment of Part 25) Regulations 2013, SI 2013/600 (for companies) and the Limited Liability Partnerships ( Application of Companies Act 2006) ( Amendment) Regulations 2013, SI 2013/618 (for LLPs). It highlights where Scots law departs from the law of England and Wales, namely: registrable charges under Scots law forms required to register security at Companies House the date on which a registrable security is created deeds of alteration needing registration (such as ranking agreements and intercreditor agreements) enforcement of...
Auction disposals frequently feature in sizeable private equity deals. Sometimes labelled ‘institutional buyouts’, owner-led auctions are set up to trigger competition among several prospective purchasers. This Practice Note concentrates on the mechanics of the auction in a management buyout setting; for broader guidance on auction disposals generally, see Practice Notes: Auction sales—share purchase and Auction sales—asset purchase, and also: Auction sale (private M& A) transactions—checklist. It outlines the principal features of the process in a management buyout context. The process The seller directs and manages the timetable, supported by a financial adviser (e.g. an investment bank). In transactions of this scale, incumbent managers typically hold only a modest equity interest in the target and so wield limited sway over the sale arrangements and within the sale process overall. See Precedent: Auction sale process letter—private M& A. Alongside private equity houses, trade acquirers may equally target the...
Factors influencing structure How a contemplated buy-out should be shaped is usually addressed early in the timetable and is typically set out in a document produced by the sponsor’s tax advisers, commonly referred to as a tax structure paper or memorandum. As the transaction proceeds, the structure often develops as fresh information emerges and professional advice is finalised. In this setting, ‘structure’ generally encompasses: the corporate framework put in place to effect the acquisition; the injection of funds into that framework and their movement within the group so they are where they must be at completion; and the steps required to implement the acquisition, the sponsor’s investment and any reinvestment by management These components are naturally interconnected. The term can also at times be used more broadly to cover determining the capital structure, ie the sources of the...
Once the finance documents are executed and the conditions precedent are satisfied (or waived in writing), a few final tasks need to be undertaken before completion can take place. For an example of a letter waiving conditions precedent under a bilateral facility agreement, see Precedent: Waiver letter: for a bilateral facility agreement—waiving conditions precedent. Pre-completion searches conducted by the lender's lawyers At the outset of the transaction, the lender's lawyers will conduct due diligence on the borrower(s), any guarantors and any third party security providers (the obligors) at the start of the transaction. For more information......
ARCHIVED: This archived Practice Note outlines the procedure for filing at Companies House security granted by a company before 6 April 2013. It is provided for background only and is not maintained. For information on how to register a company charge at Companies House where the charge was created on or after 6 April 2013, see Practice Note: Registering security at Companies House. What does it mean to 'perfect' security? Once security has been properly created, it is binding between the security provider and the secured party. However, it is not automatically binding on third parties such as a liquidator or an administrator of the security provider. Frequently, further actions are needed to ‘perfect’ the security. Perfection is the means by which security is made enforceable against certain third parties (but not necessarily all third parties). For information about the third parties who may not be bound by...
STOP PRESS: From 24 February 2025, the principal provisions of the Procurement Act 2023 ( PA 2023) have commenced. Procurements started on or after that date must be conducted pursuant to PA 2023, while procedures initiated under the earlier legislation—the Public Contracts Regulations 2015 ( PCR 2015), the Utilities Contracts Regulations 2016, the Concession Regulations 2016, and the Defence and Security Public Contracts Regulations 2011—must continue to be run and overseen in line with those regimes. See Practice Note: Key Implications of the Procurement Act 2023 for Construction Lawyers. PCR 2015 as assimilated law PCR 2015 constitute EU-derived domestic legislation and are therefore assimilated law under sections 2 and 6 of the European Union ( Withdrawal) Act 2018. For practical guidance on the status and interpretation of assimilated law, see Practice Note: Assimilated law. The public procurement regime The domestic public procurement regime is founded on several sets of...
This Practice Note sets out UK sanctions frameworks, covering regimes established under the Sanctions and Anti- Money Laundering Act 2018, the Anti- Terrorism, Crime and Security Act 2001 ( ACSA 2001), and the Export Control Order 2008 ( SI 2008/3231). Where relevant, it highlights the equivalent EU sanctions regime and points to useful further reading for each UK regime. It does not include details of designations within individual regimes. If an individual, organisation or other legal entity is designated under a UK sanctions regime (a designated person), their name appears on the UK Sanctions List ( UKSL). The UKSL assists businesses and individuals in fulfilling their responsibilities under the various regimes, and regular screening of the UKSL should be embedded in an internal sanctions compliance programme. A sanctions regime is a set of sanctions measures introduced for particular purposes. Regimes can be: ...
The principal categories of derivatives are: swaps forwards futures options This Practice Note outlines the essential characteristics of each of these derivative classes. For a broad primer on derivatives, refer to Practice Note: Introductory guide to derivatives. Swaps A swap encompasses a broad spectrum of derivative arrangements. Originating in the 1980s, swaps have grown into a global marketplace with notional amounts running to trillions of pounds. They are governed by varying rules and legal regimes according to the venue where they are traded. Swaps are commonly recorded under the International Swaps and Derivatives Association ( ISDA) documentation architecture. For further detail, see Practice Note: Derivatives— ISDA documentation framework. For insight into the reasons parties use swaps, see Practice Note: The nature of financial derivatives— Key uses of derivatives. Under a swap, two counterparties enter into an agreement to exchange cashflow streams. Each...
This Practice Note sets out the guidance for the CFR Cost and Freight Incoterm under the Incoterms® 2020 rules, reproduced with the permission of ICC Publishing SA. The Incoterms® 2020 rules and other ICC publications can be obtained from ICC Publishing SA, 33–43 avenue du Président Wilson, 75116 Paris, France, from ICC United Kingdom, 1st Floor, 1–3 Staple Inn, London, WC1V 7QH, United Kingdom, and at www.iccwbo.org. The Incoterms® 2020 rules took effect on 1 January 2020, updating the Incoterms® 2010 rules to reflect market developments over the past decade. For the CFR term applicable until that date, see Practice Note: Incoterms® 2010 Rules— CFR Cost and freight [ Archived]. CFR (insert named port of destination) Incoterms® 2020 Explanatory notes for users 1. Delivery and risk ‘ Cost and Freight’ signifies the seller delivers the goods to the buyer either: by placing them on board the...
CPT (insert named place of destination) Incoterms® 2020 This Practice Note sets out the advisory note to the CPT ( Carriage Paid To) Incoterm within the Incoterms® 2020 rules, reproduced with permission from ICC Publishing SA. Incoterms® 2020 and other ICC publications are available from ICC Publishing SA, 33–43 avenue du Président Wilson, 75116 Paris, France, and from ICC United Kingdom, 1st Floor, 1–3 Staple Inn, London, WC1V 7QH, United Kingdom, as well as at www.iccwbo.org. The Incoterms® 2020 rules took effect on 1 January 2020 and revised the Incoterms® 2010 rules to reflect market changes over the last decade. For the CPT Incoterm applicable up to that date, see Practice Note: Incoterms® 2010 Rules— CPT Carriage paid to [ Archived]. Explanatory notes for users 1. Delivery and risk ‘ Carriage Paid To’ indicates that the seller delivers the goods—and shifts risk—to the buyer by: handing the goods to the...
This Practice Note sets out the guidance for the CIP ‘ Carriage and Insurance Paid to’ Incoterm under the Incoterms® 2020 rules, reproduced here with the permission of ICC Publishing SA. Incoterms® 2020 rules and other ICC publications are available from ICC Publishing SA, 33–43 avenue du Président Wilson, 75116 Paris, France, and from ICC United Kingdom, 1st Floor, 1–3 Staple Inn, London, WC1V 7QH, United Kingdom, as well as at www.iccwbo.org. The Incoterms® 2020 rules took effect on 1 January 2020, updating the framework to reflect market developments over the last decade. For the CIP Incoterm applicable up to that date, see Practice Note: Incoterms® 2010 Rules— CIP Carriage and Insurance Paid to [ Archived]. CIP (insert named place of destination) Incoterms® 2020 Explanatory notes for users ‘ Carriage and Insurance Paid to’ indicates that the seller delivers the goods—and transfers risk—to the buyer: by handing them to the...
This Practice Note sets out guidance on how trustee’s counsel would ordinarily approach the review of bond documentation, detailing the areas to scrutinise and the specific points counsel should flag in those papers and related documentation. It also provides an overview of the trustee’s function within a debt capital markets ( DCM) transaction, explores the principal concerns for trustees during the negotiation of the documents, considers the issues that can arise in connection with an enforcement, and gives a summary of further matters that may arise for particular types of bond issuances. Unless stated otherwise, this Practice Note addresses only transaction structures involving English trustees acting pursuant to English law‑governed trust deeds, in relation to debt securities issued on a standalone basis. Overview of the trustee’s role The trustee is an entity appointed by the issuer to represent the interests of...
Banking & Finance collections These collections are comprehensive, interactive resources that help users pinpoint and tackle concepts and frequent issues in defined topics. Each section within a collection provides practical, section-specific guidance. Our banking & finance collections comprise: The Loan transaction collection is a guide to loan transactions, offering a high-level view of each stage and the tasks lawyers must complete at every phase. It includes links to checklists, precedents (with drafting notes), forms, Practice Notes, and explains the key drafting and negotiating points to weigh in loan transactions The Loan Market Association ( LMA) collection is an interactive guide to the LMA, the authoritative voice of the syndicated loan market across Europe, the Middle East and Africa ( EMEA). It collaborates with lenders, law firms, borrowers and regulators to educate the market on the benefits of the syndicated loan product and to reduce barriers to entry for new...
Terminating a derivative under an ISDA Master Agreement When ending a derivatives contract documented under an ISDA Master Agreement, it is vital to follow the termination provisions exactly as drafted. Any misstep may mean the termination is not properly effected and could be invalid. Section 6 ( Early Termination) details the outcomes that follow once an Event of Default or a Termination Event—each described in Section 5 ( Events of Default and Termination Events)—has occurred. Put simply, an Event of Default involves fault attributable to a party, while a Termination Event usually arises without blame or beyond a party’s control. Section 6 also explains how the close-out netting mechanism operates after an Event of Default or Termination Event. For more detail, see Practice Notes: Scope of the ISDA Master Agreement part 4— Section 5 ( Events of Default and Termination Events) and Scope of the ISDA...
This How to Guide examines the discharge of security over land. It covers: typical situations requiring a release of security preparatory actions before effecting release the mechanics of completion the correct method of effecting release This Practice Note addresses releases over commercial, not residential, property in England and Wales, with an emphasis on registered land. It excludes residential conveyancing practice and the discharge of mortgages over unregistered land. In this ‘how to’ guide, mortgages and other security over land are called ‘charges’; the secured party is the ‘chargee’, and the provider of the security is the ‘chargor’. When might a charge over land need to be released? Businesses frequently give land charges to secure borrowing. The charge may stand alone or form part of a broader security package. If the borrower is a company, the charge may sit within a...
This Practice Note outlines the principal documentation considerations in a loan financing that involve hedging. It addresses the core provisions found in the facility agreement, as well as hedging strategy letters, intercreditor agreements and security documentation. It also looks at fixed rate facilities and signposts useful links to relevant regulatory requirements. For detailed guidance on the ISDA suite, see Practice Note: Guide to hedging within a financing context—the ISDA documents. For commentary on why borrowers deploy hedging in lending transactions, see Practice Note: Use of derivatives to hedge against risk in a lending context— Hedging against risk in a lending context... Facility agreement Hedging clause Certain facility agreements contain a provision specifying the hedging obligations for the particular deal (see, for example, the alternatives in clause 8.3 ( Hedging) of the Loan Market Association ( LMA) Single Currency Term Facility Agreement for Real Estate Finance...
This Practice Note outlines guidance on identifying and engaging with bondholders in the context of a restructuring. For broader background on debt securities, see the following Practice Notes: Key features of the debt capital markets Bonds and notes Issuing debt securities—key documentation Parties in an issue of debt securities For materials focused on restructuring where debt securities are involved, refer to these Practice Notes: Guide to representing bondholders in a restructuring Liability management of bonds Enforcement of debt securities Why keep in touch with bondholders? Traditionally, issuers of bonds have not maintained regular dialogue with their bondholders, with communications largely confined to moments when action was required from debt holders, most often linked to a corporate action. Such contact commonly took the form of a notice released or circulated by the issuer, frequently via a bond trustee. The trustee is a...
This Practice Note This ‘how to’ resource on executing deeds directs you to the pertinent materials and guidance. It outlines what constitutes a deed, the criteria for validly executing one, signposts the execution rules for various bodies, notes further legal factors, and highlights practical tips for carrying out execution in practice. A deed is a particular type of written instrument required for specified dealings. To be valid and enforceable, deeds must be executed in line with statutory and common law formalities that demand more than a mere autograph. For wider, general guidance on executing deeds, with links to connected materials and in-depth commentary on deeds, see also Practice Note: Executing documents—deeds and simple contracts. We have created a collection that serves as an extensive, interactive tool to help users recognise and navigate the concepts and recurring issues when executing documents. Each stage or phase provides...
What does this Practice Note cover? This Practice Note provides a straightforward overview of derivatives, concentrating on: what constitutes a derivative documenting and negotiating an over-the-counter ( OTC) derivative the various derivative structures the role of derivatives within lending transactions forms of collateral and credit support used in OTC derivative transactions how derivatives are cleared and settled how derivatives are regulated tax considerations relevant to derivatives, and the resolution of derivatives disputes What is a derivative? A derivative is a financial instrument whose value is derived from an underlying asset, index, rate or reference point. Derivatives transfer risk from one party to another. They can be employed to reduce a party’s exposure to a variable or to obtain exposure to that same variable. A wide range of entities use derivatives, including banks, other investment firms, governments, local authorities, supranational authorities and pension funds. Derivatives are largely traded in the wholesale market, although certain products are also...
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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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