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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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Introduction Wind energy has been pivotal in driving the shift in generation from fossil fuels to renewables. Among renewable technologies, onshore wind is generally inexpensive and its costs have fallen sharply over the last decade; a recent International Renewable Energy Agency ( IRENA) analysis indicates the levelised cost of onshore wind power dropped by 69% between 2010 and 2022. In contrast with offshore turbines, which contend with stronger winds and need underwater installation and maintenance, onshore turbines are regarded as relatively low-tech and straightforward to set up. As a result, onshore wind is among the most widely deployed renewable options, supported by a mature global market that in 2023 surpassed 940 GW of capacity across developed and developing nations on five continents. By comparison, offshore wind — with just 72 GW across three continents — is far smaller than the more advanced onshore...
For additional practical guidance on key legal issues in the wind sector, consult the textbook: Wind: Projects and Transactions. What is offshore wind? Offshore wind means wind turbines installed in bodies of water, most commonly the sea. These turbines convert the kinetic energy of moving air into electricity. Because wind speeds offshore are typically more stable than on land, offshore projects can produce greater volumes of power. While there are overlaps, offshore turbine technology differs markedly from land-based systems. Offshore wind turbines components Early offshore schemes relied on adapted onshore machines; today, turbines are purpose-designed for marine conditions and deliver higher capacities than the largest onshore units, reaching 8–12 MW (megawatts) compared with about 3–4 MW onshore. Even larger onshore and offshore models are currently being developed and built. As with onshore technology, the key parts of an offshore turbine include the following (see Practice Note: Onshore...
The Notaries Society has produced a helpful leaflet which sets out a short history and explains the work of the notaries profession, and which is available in English and in several foreign languages. History Of the three branches of the legal profession in England and Wales, the notaries profession is the most ancient, its roots lying in the civil institutions of classical Rome. Little is recorded in England and Wales before 1279, when Pope Nicholas III granted the Archbishop of Canterbury the faculty to appoint three notaries in any one year. During the reformation, the Ecclesiastical Licences Act 1533 ( ELA 1533) transferred to the Archbishop of Canterbury the authority to grant faculties to notaries. Statutory recognition first came with the Public Notaries Act 1801 ( PNA 1801), followed by the Public Notaries Act 1843 ( PNA 1843), the Courts and Legal Services Act 1990 and,...
Loan market and developments Please provide a succinct outline of the current condition of the loan markets in your jurisdiction and any noteworthy recent developments. The US corporate loan market remains a significant pillar of the US economy. While the US loan market has undergone considerable change in recent years, it is still resilient and continues to be one of the most inventive and consequential areas within the US capital markets. Two principal components of the US corporate loan space are broadly syndicated loans ( BSL) and private credit transactions. The BSL segment is a key funding source for medium- and large-sized companies, comprising loans where multiple banks and non-bank financial institutions extend finance through a syndicate of lenders. Private credit typically involves lending by non-bank lenders on a bilateral basis or by a small cadre of lenders (often termed ‘club deals’). Both...
The International Swaps and Derivatives Association, Inc. ( ISDA) issues two standard forms of its widely used master agreement, setting out the terms and conditions governing over-the-counter ( OTC) derivatives dealings. The versions are: the ISDA Master Agreement ( Multicurrency— Cross Border) (the 1992 Master Agreement); and the ISDA 2002 Master Agreement (the 2002 Master Agreement). This Practice Note summarises the principal updates introduced by the 2002 Master Agreement and indicates matters to weigh up when negotiating a 2002 Master Agreement as compared with the 1992 Master Agreement. Payments on early termination—close-out amount replacing market quotation, loss and first and second methods The most notable revision to the Master Agreement concerns how sums are determined upon an early termination. By adopting the ‘ Close-out Amount’ in the 2002 Master Agreement, two key elections under the 1992 Master Agreement fall away: the choice between ‘ Market...
It is commonplace for engagement, release and reliance letters to be executed between the parties before external counsel is on board. Even where external lawyers are engaged, these letters often sit outside their remit, so the responsibility usually rests with in-house counsel to scrutinise and negotiate them. This Practice Note offers tips, guidance and flags potential issues for in-house counsel working on lending transactions who are involved in reviewing and negotiating such letters. When are such letters required and for what type of transactions? Each letter serves a distinct purpose: Release (or hold harmless) letters provide access to reports on different aspects of a prospective borrower’s business or market; they are prepared by third parties and are usually negotiated at the outset of a deal, when the lender is deciding whether to participate Reliance letters are put in place when a lender seeks to rely on...
Parties frequently execute confidentiality agreements before any external counsel is appointed. Consequently, in-house counsel are usually tasked with reviewing and negotiating them. This Practice Note is designed to offer tips, guidance and flag potential issues for in-house counsel working on lending transactions who are involved in reviewing and negotiating such confidentiality agreements. This Practice Note explains: when and why confidentiality agreements might be necessary what the different types of confidentiality agreements are the main points to check when reviewing a confidentiality agreement—this is split into: key common clauses and negotiating points in confidentiality agreements, such as how ‘confidential information’ is defined and the ‘permitted purpose’ of the transaction clauses specific to the primary syndication confidentiality agreement, such as the standstill provision and no front running ...
Parties to an ISDA Master Agreement Ensuring the Master Agreement clearly names the exact party with whom Transactions will be concluded is critical from the outset: within complex corporate organisations, lookalike entity names can be mixed up all too easily; the designated entity should sit in an acceptable jurisdiction and hold the necessary authorisations and regulatory permissions to transact at all times; the counterparty name on the Master Agreement must mirror that on any existing Transactions it is intended to govern in every respect Where the counterparty is incorporated in a different jurisdiction, legal due diligence on that party is strictly required, using the ISDA netting legal opinions as a starting point (see Practice Note: ISDA netting legal opinions), to ensure the agreement reached is fully enforceable in that jurisdiction. Dating the Master Agreement and schedule In the derivatives markets, it is common for Transactions to be entered into before a...
What does this Practice Note cover? This Practice Note sets out the concept of a negative pledge and considers: the negative pledge terms typically encountered in widely used categories of debt securities the implications of breaching negative pledge provisions whether a negative pledge constitutes a security interest key points to address when drafting and negotiating negative pledges What is a negative pledge? A negative pledge is a clause that prevents or limits the issuer from granting security interests over its assets for the benefit of all, or certain, other creditors. In the international capital markets, investment grade corporate issuers generally do not adopt absolute bans on creating security interests in their debt securities. Although negative pledges for debt securities by comparable issuers within a given market are largely standardised, notable differences can and do arise, reflecting the specific features of an issuer or the...
Introduction—a pure theory or a dead practice? For years, both Islamic financial institutions ( IFIs) and conventional banks have delivered Islamic financing. As outlined in Practice Note: The structure and elements of a Musharaka transaction, profit-and-loss sharing sits at the heart of Islamic finance because it reflects a core Shari’ah principle: bearing risk. Financing founded on riba (interest) is treated as non‑ Shari’ah‑compliant, since the contractors or parties (the Partners) do not participate jointly in gains and losses; the venture lacks fair risk allocation, leaving one side disproportionately exposed. Musharaka—the Shari’ah‑compliant partnership instrument built on sharing profits and losses—together with mudaraba, is among the few Islamic finance tools that rely almost entirely on this model. This emphasis on mutual risk and return has led many within Islamic banking to regard Musharaka as one of the most genuine expressions of Islamic financing....
During the development of the Murabaha structure for the UK, practitioners recognised that its novelty would inevitably create some uncertainty. Consequently, they aimed to embed features that would assist courts when construing Murabaha arrangements. They also acknowledged that conventional legal systems and Shari’ah approach Murabaha in distinct ways. This divergence did not deter Islamic finance participants from advancing the Murabaha agreement; even closely related legal systems, such as the English system, can reach different views on transactions and structures. Accordingly, Islamic finance specialists have crafted Murabaha contracts and other instruments so that they operate under both Shari’ah and the pertinent conventional legal frameworks. The differing readings of Murabaha under conventional law and Shari’ah reflect contrasts in historical evolution and emphasis. In the UK, funders and customers have built a framework around the notion that money can be treated as an asset, creating a market in...
Murabaha Murabaha ranks among the most widely used techniques in Islamic finance globally. This arrangement, often described as 'cost plus profit financing', requires at least three participants. It is naturally suited to property finance, trade finance, and consumer finance transactions to support the purchase of assets. Beyond this, Murabaha can also (and frequently does) address corporate working capital needs, underpin deposit products, and act as a mechanism to generate cash flows. These arrangements are widely executed to finance the acquisition of defined assets. In a typical structure, a customer (the Customer) requests a financier—usually an Islamic financial institution ( IFI), such as a bank or fund operating in Islamic finance—to procure specified goods from an external supplier (the Seller). The IFI then buys the named goods from the Seller and resells those goods to the Customer. The steps involve the IFI buying, then selling on to the...
Several observers point out that, in UK tax, the tension between legal form and economic substance mirrors a similar dynamic within Shari’ah. From a Shari’ah vantage point, substance may likewise prevail. Yet, because the contemporary Islamic finance sector is relatively new, uncertainty over what transactions are permissible and the premium placed on Shari’ah conformity have led market actors to prioritise transactional form. Following recognised templates offers comfort that arrangements documented in that way meet Shari’ah requirements. In practice, adherence to approved forms provides reassurance that the transactions represented by such forms align with Shari’ah. Thus, reliance on long-established mechanisms such as Murabaha can seem cautious. Nonetheless, numerous detractors of Islamic finance single out this fidelity to set structures as a principal flaw. They contend these frameworks have been deployed by equity sponsors and financial firms to replicate conventional...
The rise of equity financing: background to Mudaraba Interest-based, conventional funding often hampers economic justice, fairness and equity, as it burdens borrowers with liabilities that, in many cases, cannot be settled. Widespread inequality remains a severe global challenge, and Islamic financial models offer means to ease this. At the heart of Islamic banking and finance lies economic justice realised through risk-sharing. All parties to an investment are expected to participate in both profits and losses. As Ayat 8 of Surah Al Maidah in the Quran declares: O you who have believed, be persistently standing firm for Allah, witness in justice, and do not let the hatred of a people prevent you from being just. Be just; that is nearer to righteousness. And fear Allah; indeed, Allah is acquainted with what you do. Unlike conventional arrangements, which do not require tangible underlying assets, banks and...
ARCHIVED: This Practice Note has been archived and is no longer updated. It can still assist practitioners seeking to align the provisions of MLD4 with the MLRs. For comprehensive practical guidance on the UK AML/ CTF framework relevant to financial services, see the Anti-money laundering and counter-terrorist financing ( AML/ CTF)—overview; for the EU framework, see the Financial crime and sanctions ( EU Law)—overview. Adoption of MLD5 and implementation in the UK The Fifth Money Laundering Directive ( EU) 2018/843 ( MLD5) was published in the Official Journal of the EU on 19 June 2018 and came into force on 9 July 2018. Member States were required to transpose it into national law by 10 January 2020. MLD5 updates the Fourth Money Laundering Directive ( EU) 2015/849 ( MLD4). In the UK, MLD4 was implemented by the Money Laundering, Terrorist Financing and Transfer of Funds (...
This note aims to: offer practical pointers to creditors owed funds by a distressed or insolvent company set out the standing of creditors across the main forms of corporate insolvency outline steps a creditor can take to strengthen their position if formal insolvency begins—both beforehand and once underway This guide does not cover: individual bankruptcies. See Practice Note: Creditors’ bankruptcy petitions—grounds and documents required for presentation partnerships. See General partnerships and insolvency—overview the finer detail of corporate insolvency procedures debt recovery routes against solvent, trading companies Where a company is insolvent and cannot meet debts as they fall due ( IA 1986, s 123), the estate available to satisfy claims is finite. As a result, unsecured creditors commonly recover little, if anything (see Practice Note: Where the value breaks and negotiating...
Where are MAC clauses used in facility agreements? The concepts of material adverse change ( MAC) and material adverse effect ( MAE) generally feature in three parts of a facility agreement: Definitions—typically including a defined term for Material Adverse Effect Representations—usually containing a statement that no material adverse change has taken place Events of default—often capturing any situation likely to have a material adverse effect as a default trigger This Practice Note includes: a sample MAE definition, with accompanying drafting notes a sample MAC representation, together with drafting notes a sample MAE event of default, with drafting notes It is also usual for borrowers to try to qualify particular representations, undertakings and events of default by reference to material adverse effect......
ARCHIVED : This Practice Note has been archived and is not maintained . This Practice Note serves as a launch point to help firms plan and carry out a London Interbank Offered Rate ( LIBOR) transition project. It sets out the FCA’s part in the LIBOR switch and how it is supporting firms’ preparations, then examines in greater depth the principal issues raised by UK regulators. This is followed by a checklist highlighting key LIBOR impact areas that firms must review and address, together with points to weigh when doing so. It should be treated as a foundation and read in the context of each firm’s operations and LIBOR exposures, and tailored and adjusted accordingly. Practice Note: LIBOR transition [ Archived] offers a broader outline of the matters around LIBOR transition, plus explanations of commonly used terms. The LIBOR...
The P. R. I. M. E. Finance Arbitration Rules were updated in 2021, and the 2022 edition took effect on 1 January 2022 for arbitrations begun on or after that date (the P. R. I. M. E. Finance Rules, or the Rules). The Rules also offer model clauses and a model submission agreement. Section V of the P. R. I. M. E. Finance Arbitration Rules (the P. R. I. M. E. Finance Rules) addresses the form and effect of arbitral awards, applicable law, the currency of awards, settlement, termination, and post award procedures. Requirements of an award While tribunals often issue a single final award, they are not required to do so. A tribunal may instead make distinct awards on separate questions at different times. Under art 39 of the P. R. I. M. E. Finance Rules, an award must: be set down in...
Loan market and developments A concise overview of the present condition of the loan markets in this jurisdiction and the key recent market developments follows. The Grand Duchy of Luxembourg ( Luxembourg) enjoys a long-standing standing as a financial and business centre. Its location, political steadiness, highly skilled and well-trained labour force, and a robust legal and tax regime have underpinned this status and its role as a hub for international commerce and financing. Together, these strengths reinforce Luxembourg’s role as a focal point for cross-border trade and financing. They also sustain its standing as a financial and business centre. Loan markets, whether bank-led or through private lending, are central to Luxembourg and to the significant volume of debt financing structured through Luxembourg. Since hosting the world’s first listing of green bonds on the Luxembourg Stock Exchange (the ‘ Climate Awareness Bond’ issued by the...
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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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