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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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ARCHIVED: This Practice Note has been archived and is not maintained For the 2020 version of the rule, refer to Incoterms® 2020 Rules— DDP Delivered duty paid. The ICC publications are reproduced with permission from ICC Publishing SA. They are available 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 rules were superseded by Incoterms® 2020 with effect from 1 January 2020. For the DDP Incoterm applying from 1 January 2020, see Practice Note: Incoterms® 2020 Rules— DDP Delivered duty paid. DDP (insert named place of destination) Incoterms® 2010 Guidance note This rule can be used regardless of the chosen mode of transport and also where multiple modes are involved. “ Delivered Duty Paid” indicates the seller has delivered when the goods are at the buyer’s...
ARCHIVED This Practice Note is archived and is not maintained. For the 2020 version of the rule, refer to: Incoterms® 2020 Rules— CFR Cost and freight. ICC publications 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. The Incoterms® 2010 rules were superseded by the Incoterms® 2020 rules with effect from 1 January 2020. For the CFR Incoterm in force from 1 January 2020, see Practice Note: Incoterms® 2020 Rules— CFR Cost and freight. CFR (insert named port of destination) Incoterms® 2010 Guidance note This rule is intended solely for sea or inland waterway transport. ‘ Cost and Freight’ signifies that the seller places the goods on board the vessel, or...
The International Chamber of Commerce ( ICC) has created widely used rules and guidance to govern letters of credit and related practice. The principal publications for commercial letters of credit are: the Uniform Customs and Practice ( UCP) for Documentary Credits, which incorporates the Supplement to UCP for Electronic Presentation (the e UCP) the International Standard Banking Practice for the Examination of Documents under Documentary Credits These works set out the general framework for documentary credits. For more information on commercial letters of credit in general, please see Practice Notes: Characteristics of commercial letters of credit Types of commercial letters of credit Commercial letters of credit—structure and parties The nature of the Uniform Customs and Practice for Documentary Credits The UCP comprises standard terms and conditions that parties may choose to incorporate into a letter of credit, by agreement between the parties...
Guarantees A guarantee is a contract under which the guarantor agrees to be answerable for the principal’s liabilities to another party (the guaranteed party). Over time, the common law has evolved to afford substantial protections for guarantors. The central rationale for these protections is to ensure the guarantor has certainty about the amount, nature and terms of the obligations it is supporting, and to preserve the rights the guarantor acquires by giving the guarantee. For more information on guarantor rights, see Practice Note: Guarantor rights and how to defer them in guarantee documentation—no competition clauses. As these protections can prejudice a lender’s position, it is common practice for lenders to seek to exclude such rights in guarantee documentation......
Guarantees In banking transactions, guarantees are commonly employed as security for a liability. For further information on the characteristics of guarantees, please see the Practice Note: Guarantees......
A standard project rests on an intricate web of contractual ties among the participants, for example the project company, equity investors, contractors, sub-contractors, off-takers and suppliers (see Practice Note: Project finance—key project parties). The instruments that govern these arrangements are usually called the ‘project documents’. For further detail on project documents generally, see: Project documents: issues for lenders—overview. In many transactions, a concession contract forms one of the key project documents. That concession contract sets the terms of the relationship between the host government (or governmental authority) and the project company... What are 'concessions' in the context of project finance transactions? Numerous projects feature some level of collaboration between the private sector and the public sector. According to the project structure, private parties may assume responsibility for scoping, design, financing, construction and/or operation of the project. Often, however, the government in the country where the...
Cross-border tools By its very nature, the EU Recast Regulation on Insolvency is binding in law and directly applicable across all EU Member States, except Denmark (which opted not to participate in this regulation). Following Brexit, the principal operative provisions on automatic recognition under the EU Recast Regulation on Insolvency are no longer applicable in the UK (see Practice Note: Brexit—impact on Recast Regulation on Insolvency [ Archived]). However, other Member States continue to apply the EU Recast Regulation on Insolvency where its requirements are met. The UNCITRAL Model Law on Cross- Border Insolvency (the UNCITRAL Model Law on Cross- Border Insolvency) has no direct effect; nonetheless, countries around the world may decide to adopt it, in whole or in part, with or without modifications (see Practice Notes: List of countries which have adopted the UNCITRAL Model Law on insolvency or are...
Scope of this Practice Note The core purpose of the Financial Services and Markets Act 2000 ( FSMA 2000) was to create and confer powers on the then Financial Services Authority ( FSA), following the government’s decision to introduce a single regulator for financial services in the UK. It serves as an overarching framework for financial services legislation and regulation within the UK. FSMA 2000 took effect on 1 December 2001, at which point the FSA became the sole regulator of the UK financial services industry. As part of government plans to reform the UK’s financial services regulatory architecture, the FSA was abolished on 1 April 2013 and its responsibilities were divided between two new bodies: the Prudential Regulation Authority ( PRA) and the Financial Conduct Authority ( FCA). FSMA 2000 remained the primary statute for the UK financial services industry, although the...
ARCHIVED: This Practice Note is archived and is no longer maintained. It summarises the principal changes to UK banking reform brought in by the Financial Services ( Banking Reform) Act 2013 ( FS( BR) A 2013, the Banking Reform Act). The legislation delivered major reforms to UK financial services regulation, granting HM Treasury and the Prudential Regulation Authority ( PRA) the powers required to put into effect recommendations by Sir John Vickers and the Independent Commission on Banking ( ICB) on ring-fencing for the banking sector, and also introduced: a criminal offence of reckless misconduct in running a bank a payment systems regulator ( PSR) the senior managers and certification regime ( SM& CR) a bail-in stabilisation option within the special resolution regime ( SRR) a cap on the cost of payday...
BREXIT: From 31 January 2020, the UK ceased to be an EU Member State and moved into an implementation phase, during which, for many matters, the EU continues to treat it as if it were a Member State across a range of areas. In its capacity as a third country, the UK is excluded from the EU’s political institutions, agencies, offices, bodies and governance frameworks (save to the limited extent agreed), yet it must keep to its obligations under EU law (covering EU treaties, legislation, principles and international agreements) and remain subject to the ongoing jurisdiction of the Court of Justice of the European Union in line with the transitional regime in Part 4 of the Withdrawal Agreement. For further reading, see: Brexit—introduction to the Withdrawal Agreement. This affects this Practice Note. For guidance, see Practice Note: Brexit—impact on finance transactions [ Archived]— Brexit planning and...
BREXIT: From 31 January 2020, the UK ceased to be a Member State of the EU, yet moved into an implementation phase in which, for numerous purposes, the EU continues to regard it as a Member State. As a third country, the UK is excluded from participation in the EU’s political institutions, agencies, offices, bodies and governance frameworks (save to the limited extent agreed), yet it must still comply with obligations under EU law (covering EU treaties, legislation, principles and international agreements) and accept the ongoing jurisdiction of the Court of Justice of the European Union, in accordance with the transitional provisions in Part 4 of the Withdrawal Agreement. For further reading and context, see: Brexit—introduction to the Withdrawal Agreement. This development affects this Practice Note. For related guidance, see Practice Note: Brexit—impact on finance transactions [ Archived]— Brexit planning and...
Tracker overview This tracker outlines legislative and regulatory milestones from 2001 up to 31 January 2020, the date of Brexit, covering Regulation ( EU) 2017/1129 (referred to here as the EU Prospectus Regulation or Prospectus Regulation) and the repealed Directive 2003/71/ EC ( Prospectus Directive). It is organised into the following sections: Recent and future developments (2015 onwards) Review and further implementation of the Prospectus Directive (2009–2014) Implementation of the Prospectus Directive (2003–2009) Regulation ( EU) 2017/1129 was published in the Official Journal of the EU on 30 June 2017 and came into force in the EU on 20 July 2017. The bulk of its provisions have applied in the EU since 21 July 2019, with a small number taking effect earlier. For the stages of debate and agreement within the European legislative process on the Prospectus Regulation, see: EUR- Lex ( Procedure 2015/0268/ COD). Key...
Lenders' risk exposure In day-to-day secured lending businesses, lenders are increasingly alert to environmental risk. Every major UK bank must now, to a greater or lesser extent, incorporate a formal appraisal of environmental factors within secured lending credit risk assessment processes, though this typically relates more to commercial property than to residential property. Such scrutiny may appear within the solicitor/conveyancer’s report on title; however, lenders are more frequently implementing structured internal procedures, which can include instructing their panel Chartered Surveyors to evaluate environmental risk as part of the valuation process. The Law Society provides its members with guidance on ground contamination, flood risks and climate change, detailing steps to mitigate these issues and setting out best practice within its practice notes......
This Practice Note explores the expenses a lender bears when advancing finance to a borrower, and the measures it builds into the facility papers to ensure any rise in those expenses is, in the end, borne by the borrower. It examines the specific outlays a lender aims to recover via an increased costs clause, alongside the safeguards a borrower will try to agree to preserve their position. Costs of funding Funding a loan attracts several categories of cost, and lenders typically account for them when setting the facility price. These cover the cost of sourcing the funds, including interest paid to depositors, together with compulsory items such as PRA and FCA fees, and any Bank of England obligation on the bank to lodge non‑interest bearing deposits with it. In addition, banks must hold a minimum level of regulatory capital—see: Prudential...
Design Build Operate ( DBO) Rising demand for public infrastructure during periods of tight public finances, coupled with limited public sector expertise in delivering complex facilities (such as water treatment works and energy plants), has prompted greater private sector involvement in the procurement and operation of public infrastructure. There are numerous possible frameworks for bringing public sector risk and expertise into the procurement of public infrastructure, covering a wide spectrum of structures. One such arrangement is Design Build Operate ( DBO). It is especially popular for water treatment plants. For information on variations of the DBO structure, see Practice Notes: Infrastructure projects—project structure and BOT contracts. Under DBO, a government (often through a government body or local authority) engages a single contractor to: design and construct the infrastructure facility operate the facility for a period (typically between 10–30 years) The government typically funds the...
STOP PRESS: The UK’s prospectus framework presently derives from the EU Prospectus Regulation, preserved in domestic law post‑ Brexit as the UK Prospectus Regulation. The UK has been reassessing this framework within broader initiatives to modernise its capital markets and to bolster the UK’s appeal as a listing venue. This forms part of wider UK reforms. In consequence, the UK Prospectus Regulation will be superseded by the Public Offers and Admission to Trading Regulations 2024 (the POATRs), with the granular requirements for admission to trading to be set out in Financial Conduct Authority ( FCA) admission rules. All detailed provisions concerning admission to trading will be contained in FCA admission rules. The FCA issued its final rules ( PS25/9) on 15 July 2025. These rules are expected to come into force on 19 January 2026. For more on the principal components of the POATRs’ new...
ARCHIVED : This Practice Note has been archived and is no longer kept up to date; please see Practice Note: Money Laundering Regulations 2017 ( MLRs)— FCA supervision of cryptoasset firms, Annex 1 financial institutions, MSB/ TCSP activities. It explores the risks posed by cryptoassets from the angles of financial crime, money laundering and terrorist financing. It assesses how and why cryptoassets can be vulnerable to, and enable, criminality, and how regulators have addressed these perceived risks. It also reviews criminal matters involving cryptoassets, notably Bitcoin. What are cryptoassets? A key obstacle to grasping non‑traditional currencies and assets is the inconsistent terminology. Regulators, tax authorities and commentators variously speak of digital currencies, virtual currencies, cryptocurrencies, cryptoassets and crypto tokens; and it is often uncertain whether these labels are being used as synonyms or with distinct meanings in mind. For definitions, see Practice Note Web 3.0, digital assets and...
This Practice Note outlines what covenants are and why they are used in debt capital markets transactions, and highlights common covenants included in the documentation for a debt securities issue. What is a covenant? Covenants—also referred to as undertakings—are commitments either to carry out certain actions or to refrain from particular conduct. An agreement to act is a positive covenant; an agreement not to act is a negative covenant. In debt capital markets documentation, as in finance documentation generally, covenants are employed to: ensure the obligor provides information needed for monitoring and oversight (information covenants) set financial targets or thresholds for the obligor (financial covenants) define the parameters within which the obligor runs its business and deals with its assets, and impose other ongoing obligations (general covenants) The obligor’s agreement to repay the debt and, where applicable, to pay interest and any premium, is often...
An increasing cohort of developers is reporting that co-located battery storage schemes have secured project finance. This marks significant progress, given that as recently as 2018 grid-scale batteries were treated as an emerging asset class, with many funders having written them off as unsuitable for project finance. This Practice Note sets out key considerations for both lenders and developers looking to project finance co-located battery storage projects. For more information on: construction considerations for co-located battery storage projects, see Practice Note: Energy storage—construction issues property aspects regarding co-located battery storage projects, see Practice Note: Battery storage projects—property issues planning matters, including in relation to co-located battery storage, see Practice Note: The planning regime for energy storage in England and Wales battery storage projects more broadly, see Practice Notes: Scaling up energy storage—revenue opportunities in Great Britain and Energy storage...
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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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