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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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How deeply in-house counsel engage with a lending deal depends on the scope of their remit and, to a significant degree, on how complex the deal is. In certain organisations, counsel act in a strictly 'advisory' capacity, setting relevant policies for business teams to implement; as a result, they are not embedded in the day-to-day running of a lending transaction, but will step in to handle ad hoc business queries and to address any deviation from policy as and when it arises. By contrast, in other organisations the in-house lawyer takes on a 'transactional support' role, under which they work alongside the business or commercial team and are actively involved in the daily conduct of the lending transaction; this involvement may range from providing purely legal support through to managing and executing the transaction itself. For more on the role of in-house...
Infrastructure procurement describes how a facility’s delivery is organised. This Practice Note concentrates on arranging the design, engineering and construction of a facility. For information on funding models, see Practice Note: Funding models for infrastructure. A variety of factors will shape the decision on the most suitable way to procure an infrastructure facility. Factors influencing the procurement method Factors significant when deciding on the form of procurement for an infrastructure project include: the nature of the infrastructure project—eg mining, road, port, energy project the project’s complexity—does it involve process technology or multiple facilities? who the owner is—eg a public body using PPP or a Regulated Asset Base ( RAB) model, or a private company experienced in managing works? how the project is funded—by public money, debt or private investment? Lenders may require a particular procurement route the allocation of risk between the parties—is single-point...
Infrastructure spans an extensive spectrum of assets, covering everything from schools, hospitals, highways and rail routes to wind power, electricity, waste and water schemes, as well as oil and gas installations, pipelines and processing facilities. Contractors are increasingly sharpening specialist skills and delivering infrastructure schemes across borders. Consequently, the construction contract forms in play are becoming more internationally standardised. Although infrastructure contracts share core clauses, no single template suits every scheme. Any template must be adapted to reflect the project’s particular issues and subject matter, the parties’ risk allocation, and to comply with the governing law of the contract and the project’s location. In some cases, a bespoke infrastructure construction contract is a better choice than a heavily amended standard form. Choice of contract The contract model adopted for an infrastructure build will depend on the: procurement of the works, for example: ...
STOP PRESS: The Loan Market Association ( LMA) has issued refreshed editions of the standard terms and conditions for Par and Distressed Trade Transactions, the full and complete sets of Funded Participation and Risk Participation Agreements, and the Secondary Debt Trading Documentation User Guide; all of which take effect from 17 March 2026. The changes include the deletion of LIBOR references, updates to IBOR rate definitions and the Target2 definition, and revised ERISA representations that incorporate further exemptions from the prohibited transaction rules under ERISA and the US Internal Revenue Code. The revised documentation is accessible to LMA members only via the LMA’s Documentation Hub. Is loan trading on the secondary market a regulated activity? The UK position The use of information within the UK loan secondary debt market remains somewhat unclear. The UK regulatory framework oversees firms that deliver services to clients connected to...
Entry conditions For informal restructuring to be an option (rather than using a formal tool such as a Part 26A restructuring plan), you need: a viable core business, even if it is currently burdened with too much debt early recognition of distress, for example a financial forecast indicating a likely covenant breach liquidity whilst restructuring is assessed—companies will usually fully draw any existing facilities as soon as they can support from key stakeholders—typically the secured lenders together with existing shareholders The cause of the present difficulties is relevant too. Informal restructuring may work where, for example: an asset or part of the business (eg a legacy factory unit) is loss-making and consuming resources rapid, acquisition-led growth means newly acquired businesses have not been properly integrated there is the loss of a major customer there is the loss of a major supplier pensions liabilities are high base costs have risen (eg many airlines were hit by...
Who are bondholders? Bondholders, sometimes referred to as noteholders, have typically put capital into a company’s most junior—and therefore risky—debt. In a distressed scenario, they will often form a pressure group, coming together to seek recovery from a restructuring by presenting a unified position to the debtor’s advisers and other stakeholders, including senior lenders, as a collective. For further reading, see Practice Note: Bonds and notes. Bondholders will frequently sit within a complex capital structure. The bondholders’ committee The bondholders’ committee is usually organised by the indenture trustee for the bonds or by a lawyer specialising in representing the interests of junior creditors. The committee can also be known as the: steering committee co-ordinating committee A committee is formed as part of a restructuring process rather than as a formal insolvency process. The formation of the committee......
Informal creditors' committees In numerous restructurings, creditors often convene informal (ad hoc or unofficial) committees instead of formal ones (see Practice Note: Formal creditors' committee in a restructuring), which can significantly support discussions between the debtor company and its creditors. Since the 2007/8 credit crunch, the emergence of alternative finance providers, such as hedge funds and other investors, has amplified the influence of these informal groups. Typically assembled by bondholders, noteholders or unsecured creditors, they are playing a bigger part in the current surge of informal liability management exercises ( LMEs) (see Practice Note: FAQs on Liability Management Exercises). There are no statutory provisions or best practice standards governing how such committees are set up, and their make-up and operation are even more flexible than for formal committees. Informal committees possess no defined powers, and their members owe no fiduciary...
This Practice Note examines the need for the representor to have both intended and in fact caused the representee, through their misrepresentation, to enter into the contract. For guidance on the remaining core components of an actionable misrepresentation, refer to the following Practice Notes: Misrepresentation—what statements can found a claim? Misrepresentation—falsity (fraudulent, innocent or negligent misrepresentation) The main elements of inducement in misrepresentation claims The claimant must be able to demonstrate that the representation led them to enter into the contract......
What is clearing of derivatives? Clearing is the mechanism that removes the usual danger, in practice, that one side to a derivatives deal will fail to perform (counterparty risk). The main participants involved in the clearing process are: a financial institution called a clearing house, and other financial institutions, typically banks or brokers, that enter into a clearing agreement with the clearing house—these institutions are indeed known as clearing members of the clearing house, or simply clearing firms within this framework In cleared transactions: the following applies: every trade is undertaken by clearing members, who may do so for their own accounts or for the accounts of their clients, and the clearing house inserts itself between the clearing members that entered into the trade, becoming a party to each transaction—each participant is therefore exposed to the risk of the clearing house, not to the risk of...
This Practice Note considers independent business reviews ( IBRs) and sets out to: offer high-level guidance on an IBR indicate when an IBR might be requested identify potential areas of conflict highlight typical scope and report contents outline common outcomes of an IBR, and flag key issues at the point of engagement What is an IBR? The purpose of an IBR is often misconstrued, sometimes regarded as a precursor to insolvency or a lender withdrawing support. Although either may occur, an IBR chiefly provides stakeholders with an external perspective to aid decision-making. It is an independent, objective and impartial review that typically examines a company’s current trading position and future prospects, enabling the company and its stakeholders—principally lenders and investors—to consider their options using an agreed, fact-based understanding. While many IBRs focus on historic and forecast financial...
This Practice Note provides the introduction to the Incoterms® 2020 rules, reproduced here with the permission of ICC Publishing SA. The Incoterms® 2020 rules, together with other ICC titles, can be obtained 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 via www.iccwbo.org. Taking effect on 1 January 2020, the Incoterms® 2020 rules superseded the Incoterms® 2010 rules to mirror developments in the marketplace over the past ten years. For an overview of the Incoterms® 2010 rules, see Practice Note: Incoterms® 2010—introduction [ Archived]. Foreword By John W. H. Denton, AO, ICC Secretary General Expansion of the global economy has offered most companies unprecedented access to markets worldwide. As a consequence, goods are now traded in more jurisdictions, in larger volumes, in wider...
Article by article comparison of Incoterms® 2020 rules This Practice Note offers an article-by-article comparison of the Incoterms® 2020 rules, reproduced with permission from ICC Publishing SA. Other ICC works are obtainable 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 shifts over the past decade. For an overview of Incoterms® 2010, applicable until that date, see Practice Note: Incoterms® 2010—introduction [ Archived]. This Practice Note presents an article-by-article analysis of the Incoterms® 2020 rules, with each article examined separately across all Incoterms. For a comparison table that considers all Incoterms® 2020 articles together, see: General obligations This table contrasts the seller’s general obligations under A1 General...
This Practice Note contains the guidance for the FAS Free Alongside Ship Incoterm within the Incoterms® 2020 rules, reproduced here with the permission of ICC Publishing SA. 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. Incoterms® 2020 took effect on 1 January 2020, updating the Incoterms® 2010 rules to reflect market changes over the preceding ten years. For the FAS Incoterm applicable until that date, see Practice Note: Incoterms® 2010 Rules— FAS Free alongside ship [ Archived]... Explanatory notes for users 1. Delivery and risk ‘ Free Alongside Ship’ indicates that the seller effects delivery to the buyer: when the goods are set alongside the vessel (eg on a quay or a barge) ...
DAP (insert named place of destination) Incoterms® 2020 This Practice Note sets out the guidance for the DAP Delivered at Place Incoterm within the Incoterms® 2020 rules, reproduced here with permission from ICC Publishing SA. Incoterms® 2020 and other ICC works are obtainable 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 www.iccwbo.org. The Incoterms® 2020 rules took effect on 1 January 2020, revising the Incoterms® 2010 rules to mirror market developments over the past decade. For the pre‑2020 DAP term, see Practice Note: Incoterms® 2010 Rules— DAP Delivered at place [ Archived]. Explanatory notes for users 1. Delivery and risk ‘ Delivered at Place’ signifies the seller completes delivery—and passes risk—to the buyer: when the goods are made available to the buyer on the...
ARCHIVED: This Practice Note is archived and is not maintained For the 2020 version of the rule, see: Incoterms® 2020 Rules— FAS Free alongside ship. ICC publications are reproduced with permission from ICC Publishing SA. They can be obtained from: ICC Publishing SA, 33-43 avenue du Président Wilson, 75116 Paris, France ICC United Kingdom, 1st Floor, 1-3 Staple Inn London, WC1V 7QH, United Kingdom www.iccwbo.org Incoterms® 2010 were superseded by Incoterms® 2020 on 1 January 2020. For the FAS term effective from that date, consult Practice Note: Incoterms® 2020 Rules— FAS Free alongside ship. FAS (insert named port of shipment) Incoterms® 2010 Guidance note This rule applies exclusively to sea or inland waterway transport. Under ‘ Free Alongside Ship’, the seller delivers once the goods are positioned beside the vessel chosen by the buyer at the named port of shipment (e.g. on a quay or a...
ARCHIVED: This Practice Note is archived and not maintained. For the 2020 iteration of the rule, refer to: Incoterms® 2020 Rules— CIP Carriage and insurance paid to. ICC materials are reproduced here with permission from ICC Publishing SA. These 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, and www.iccwbo.org. With effect from 1 January 2020, Incoterms® 2020 rules superseded the Incoterms® 2010 rules. For the CIP term in force from 1 January 2020, see Practice Note: Incoterms® 2020 Rules— CIP Carriage and insurance paid to. CIP (insert named place of destination) Incoterms® 2010 Guidance note This rule applies regardless of the transport mode chosen and may equally be adopted when multiple modes of transport are used. Under ‘ Carriage and...
FOB (insert named port of shipment) Incoterms® 2010 Guidance note ARCHIVED: This Practice Note has been archived and is no longer maintained. For the 2020 version of the rule, refer to: Incoterms® 2020 Rules— FOB Free on board. The ICC publications reproduced here appear with permission from ICC Publishing SA. They 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. Incoterms® 2010 rules were replaced by Incoterms® 2020 rules with effect from 1 January 2020. For the FOB Incoterm applicable from 1 January 2020, see Practice Note: Incoterms® 2020 Rules— FOB Free on board. This rule is intended solely for sea or inland waterway transport. Under Free on Board, the seller places the goods on the vessel nominated by the buyer at the stated port of...
ARCHIVED : This Practice Note has been archived and is not maintained. For the 2020 version of the rule, see: Incoterms® 2020—introduction The ICC has authorised the use of its publications here via ICC Publishing SA. You can obtain these and other ICC titles from the following: ICC Publishing SA, 33-43 avenue du Président Wilson, 75116 Paris, France ICC United Kingdom, 1st Floor, 1-3 Staple Inn London, WC1V 7QH, United Kingdom www.iccwbo.org From 1 January 2020, the Incoterms® 2010 rules were superseded by the Incoterms® 2020 rules. For details on the Incoterms® 2020 rules in force from 1 January 2020, see Practice Note: Incoterms® 2020— Introduction. Foreword By Rajat Gupta, ICC Chairman The expanding world economy now offers companies unprecedented reach into markets across the globe. Products are traded in more countries, at greater scale, and in wider ranges than ever. However, as...
This Practice Note sets out the guidance to the FCA Free Carrier Incoterm within the Incoterms® 2020 rules, reproduced here with permission from 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, 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, revising the Incoterms® 2010 rules to reflect market developments over the last decade. For the FCA Incoterm that applied until then, see Practice Note: Incoterms® 2010 Rules— FCA Free Carrier [ Archived]. FCA (insert named place of delivery) Incoterms® 2020 Explanatory notes for users 1. Delivery and risk ‘ Free Carrier (named place)’ indicates that the seller provides the goods to the buyer in one of two ways: First, where the named place is the...
DPU (insert named place of destination) Incoterms® 2020 — Explanatory notes for users This Practice Note presents the guidance for the DPU ( Delivered at Place Unloaded) Incoterm under the Incoterms® 2020 rules, reproduced with the permission of ICC Publishing SA. Incoterms® 2020 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, revising the Incoterms® 2010 rules to reflect market developments over the past decade. For the corresponding DPU/ DAT term that applied up to that date, see Practice Note: Incoterms® 2010 Rules— DAT Delivered at terminal [ Archived]. 1. Delivery and risk ‘ Delivered at Place Unloaded’ signifies that the seller delivers—and transfers risk—to the buyer when 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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