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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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Express and implied contractual terms distinguished Contractual terms may be either express or implied: Express terms—provisions set out in a written contract or clearly stated in an oral agreement at the point of formation (and they may comprise a combination of written and spoken terms) Implied terms—provisions not expressly stated but read in ‘by implication’ to reflect the parties’ intentions when the contract was made Terms may be implied by fact, by law, or by custom. For guidance on implying terms into contracts, see the following Practice Notes: Contract interpretation—terms implied by fact Contract interpretation—terms implied by law Contract interpretation—terms implied by custom and usage Issues with express contractual terms Even where terms are expressly agreed, issues can arise as to: incorporation—what has actually been included as an express term of the contract, and construction or...
This Practice Note highlights key considerations for in-house counsel dealing with vanilla bond issuances in the international capital markets. It is aimed at banking and finance lawyers based in banks or other financial institutions. General Initial points to consider: Are you the sole lawyer advising on this transaction, or are external law firms involved? Syndicated bond offerings will, in most cases, involve an external law firm. Check any internal policies on when external counsel must be instructed, who can be appointed, and how costs are managed or shared. See: Selecting external law firms—a guide for in-house banking and finance lawyers; and checklist: Agreeing engagement terms with external law firms—a checklist for in-house banking and finance lawyers for further information on appointing an external law firm What are the roles an external law firm will take? Commonly, the issuer and the mandated banks will each...
Perfecting security Where a transaction includes security, it is critical that all perfection requirements are addressed after completion. The lender’s lawyers will generally handle this, as failure to perfect properly can leave the security unenforceable against certain third parties or leave its priority unprotected. For more information, see Why is it necessary to perfect security? The route to perfection depends on the form of security and the asset charged. In most cases, security granted by a company or LLP must be registered at Companies House to preserve its validity. Further actions may also be required to safeguard or improve priority, or to ensure the security is legal or statutory rather than merely equitable. For more information, see: How is security perfected? Post-completion in loan transactions—checklist for the lender's lawyers — Perfecting security This Practice Note is a short introduction and covers: ...
What does this Practice Note cover? This Practice Note sets out the ways in which a derivatives deal may be executed and gives a high‑level overview of smart derivatives contracts. How a derivative is put in place depends on whether it is exchange‑traded or over‑the‑counter ( OTC). For exchange‑traded products, execution commonly occurs via an intermediary, such as a broker, and is governed by standard documentation together with the exchange or its clearing house’s clearing and settlement arrangements. The Note primarily focuses on the execution of OTC derivative contracts, which generally lack this infrastructure, leaving the practical steps of execution to be organised by the two contracting parties. For a fuller discussion of how OTC and exchange‑traded derivatives differ, see Practice Notes: OTC and exchange traded derivatives—key features and concepts and OTC and exchange traded...
What does this Practice Note cover? This Practice Note explains what a sustainability-linked bond ( SLB) is, outlines the Sustainability-linked Bond Principles ( SLBPs) issued by the International Capital Market Association ( ICMA), and how they operate. It also explores the outlook for SLBs. For the latest updates and major developments in sustainable finance (including SLBs), see Practice Notes: Sustainable finance—recent news and Sustainable finance and ESG—timeline. For an introductory overview of sustainable finance, see Practice Note: Introductory guide to sustainable finance and ESG for finance lawyers. What are sustainability-linked bonds? SLBs are bonds where the proceeds are not earmarked for green or sustainable projects (unlike ‘use of proceeds’ green or sustainability bonds) and are intended for general corporate purposes. Instead, SLBs are tied to performance against specified key performance indicators (the KPIs) aimed at meeting pre-defined sustainability performance targets ( SPTs). Depending on whether those...
What does this Practice Note cover? This Practice Note sets out a high-level guide to foreign exchange ( FX) derivatives and how they support currency hedging. It reviews the principal FX instruments and their applications, and explains the difference between deliverable and non-deliverable structures. FX forwards, FX swaps, and FX options It also summarises the documentation frameworks commonly used in FX derivatives markets, including: International Foreign Exchange Master Agreement ( IFEMA) International Foreign Exchange and Currency Option ( IFXCO) International Currency Options Market ( ICOM) Cross Product Master Agreement ( CPMA) Additionally, it considers the regulatory environment, the FX Global Code, and the emerging technologies shaping the FX derivatives landscape. What is a FX derivative? An FX derivative is a contract whose payoff is linked to the exchange rates between two or more currencies. The FX market runs into the trillions of dollars and includes a significant volume of FX...
The Russia ( Sanctions) ( EU Exit) Regulations 2019 ( SI 2019/855), made under the Sanctions and Anti- Money Laundering Act 2018, establish the UK’s Russia sanctions regime. Its aim is to encourage Russia to: halt activities that destabilise Ukraine, including conduct that undermines or threatens Ukraine’s territorial integrity, sovereignty and independence promote payment of compensation by Russia for damage, loss or injury suffered by Ukraine For information on the UK sanctions regime against Belarus, see Practice Note: Sanctions regime— Belarus. Key information The Russia ( Sanctions) ( EU Exit) Regulations 2019 ensure Russia-related sanctions are effectively implemented in the UK. In force from 31 December 2020, they replaced the previous EU sanctions regime responding to Russia’s actions in Ukraine. The measures include: Financial sanctions Immigration sanctions Trade sanctions Transport sanctions Director disqualification sanctions For further information, see section: What’s prohibited? The territorial extent of the Regulations covers the whole of the UK,...
This Practice Note outlines how the common law doctrine of frustration may operate to terminate an agreement and the legal effects when a contract is frustrated, addressing issues of partial frustration, the position where a party is at fault (self‑induced frustration), and illustrations of types of frustrating event. See also the following Practice Notes: Frustration event analysis—a practical guide Frustration—key and illustrative decisions For detailed guidance on drafting a notice that asserts frustration of a contract, see Precedent: Contract frustration notice. Interest in the doctrine of frustration came sharply to the fore in light of global events such as the coronavirus ( COVID-19) pandemic in 2020 and Russia’s invasion of Ukraine in 2022, together with the attendant imposition of sanctions against Russian entities. Links to general guidance regarding contractual relations and these world events are also provided in the current world events section below....
This starter guide offers an introductory primer on insurance and reinsurance. It is intended for junior lawyers and individuals who are new to insurance and reinsurance as a practice area. The guide highlights key issues and points to additional resources and materials that provide more comprehensive information on the topics covered. What is insurance law? Insurance law can be divided into three strands: insurance contract law, which governs the contractual relationship between insureds and insurers the law of intermediaries, which regulates insurance business conducted through agents (this is true for most insurance business) insurance regulation and company law, which is concerned with the financial soundness, probity and regulation of insurance companies For further detail, see Practice Note: General principles of insurance contract law. Insurance policies are, at heart, contracts and the usual principles of contractual construction apply. For more guidance on the nature of...
This Practice Note sets out the ( CRAs) under Assimilated Regulation ( EC) 1060/2009 (the UK CRA Regulation). Key definitions Credit ratings A credit rating is an opinion on creditworthiness, formed using an established and defined ranking system of rating categories, regarding: an entity, a debt or other financial obligation, a debt security, a preference share, or another financial instrument; or an issuer of any such obligation, security, preference share, or instrument. These are not credit ratings: recommendations—research or other material that explicitly or implicitly suggests an investment strategy about one or several financial instruments or their issuers, including any view on the present or future value or price of such instruments, intended for distribution channels or the public; investment research and other general recommendations, such as ‘buy’, ‘sell’ or ‘hold’, on transactions in financial instruments or on financial obligations; or opinions on the value of a financial instrument or a...
Overview This Practice Note explores the purpose, reach and preparation of assumptions and qualifications in English law legal opinions furnished in banking and finance transactions. Its principal emphasis is on enforceability and capacity opinions issued for loan facilities, spanning both bilateral and syndicated transactions. In the majority of finance transactions governed by English law, supplying one or more legal opinions is a condition precedent to utilisation or completion. Such opinions are ordinarily directed to the lender, the facility agent and/or the security agent, and, in England and Wales, the convention is that they are produced by the lender’s own legal advisers. Two core elements underpin every legal opinion: assumptions and qualifications. Assumptions concern factual matters or external law that the opinion giver does not verify independently. Qualifications (often called reservations) confine or clarify the ambit and impact of the views expressed....
This annual overview surveys the standout shifts of 2017 and flags what lies ahead for 2018. It covers: Prospectus Regulation ( EU) 2017/1129 the new UK regime for insurance linked securities central clearing and compulsory margining for OTC derivatives under EMIR ( EU) 648/2012 the EU framework for simple, transparent and standardised ( STS) securitisation commodity derivatives position limits under Mi FID II (2014/65/ EU) the trading obligation for specified OTC derivatives under Mi FIR ( EU) 600/2014 indirect clearing of OTC derivatives under EMIR and Mi FIR In 2018, derivatives practitioners will chiefly concentrate on the commencement of Mi FID II and the roll-out of indirect clearing. The round-up also signposts updates to Lexis Nexis® content, highlighting notable developments from the last year and what to expect over the coming 12...
This Practice Note outlines the key features of the UK public offers and admissions to trading regime that commenced on 19 January 2026. It explains the rules for making public offers and securing admission of securities to trading in the UK, together with the prospectus obligations under the updated regime. The emphasis is on provisions relevant to the debt capital markets. The new UK public offers and admissions to trading regulatory framework A fresh regulatory system for UK public offers and admissions to trading—covering when a prospectus is needed and what it must contain—took effect on 19 January 2026, displacing the earlier EU-derived framework. From that date, Assimilated Regulation ( EU) 2017/1129 (the UK Prospectus Regulation), the FCA’s Prospectus Regulation Rules sourcebook ( PRR), and parts of Part 6 of the Financial Services and Markets Act 2000 were repealed. The new...
The directors of a company are responsible for its day to day management Company directors oversee the day-to-day running of the business. Their authority to act on a company’s behalf flows from its articles of association, the Companies Act 2006 ( CA 2006), the common law and any pertinent members’ resolutions. Equally, directors’ powers are curtailed by limits in the articles, CA 2006 (notably directors’ duties and any matters reserved to the members), the common law and any relevant members’ resolutions. By contrast with members’ decision-making — undertaken by written resolutions or at a general meeting or annual general meeting — CA 2006 contains no rules on how a company’s directors take decisions. In particular, it sets out no provisions governing meetings of the board of directors (board meetings). Accordingly, the company’s articles must prescribe the framework for directors’...
In addition to the guiding principles on contract interpretation articulated by Lord Hoffmann in ICS (refer to Practice Note: Contract interpretation—the guiding principles), further interpretative rules have been developed to assist with construing contracts. The starting point is the parol evidence rule, which limits the admissibility of extrinsic material as a means of adding to, altering or contradicting a written bargain. For related guidance on questions of admissibility, refer to the following Practice Notes: Contract interpretation—admissibility of surrounding documents Contract interpretation—admissibility of pre-contractual negotiations and statements Parol evidence rule—what is it? The parol evidence rule provides that, where the parties have executed a signed agreement, it is generally not permissible to introduce external evidence to: demonstrate what the parties intended when entering into that agreement ( Prenn v Simmonds) contradict, vary or add to the terms of the written...
Registration can have an important effect on the priority of competing security interests. In broad terms, there are two principal methods for recording security interests: registration against the specific asset that is charged, and registration against the entity granting the security This Practice Note focuses on the first method, where the secured asset is an aircraft entered on the UK register. For guidance on how registration against other categories of asset influences the priority of security interests, see the following Practice Notes: Effect of registering security at HM Land Registry/ Land Charges Department on priority of security interests Effect of registering security on the UK Ship Register on priority of security interests Effect of registering security at IP registries on priority of security interests As for the second method, where the security provider is a company formed and registered under the Companies Act 2006, registration against that entity is carried out at...
This Practice Note sets out the legal framework and practical issues around bills of lading and sea waybills used in the context of arrangements for transporting goods by sea. It outlines how bearer bills, order bills and seaway bills differ, in practice, and describes the roles of a bill of lading as receipt, title document and contractual instrument. The Note also identifies the parties to the carriage contract, how they interact with third parties, and, in particular, the means by which rights under the paperwork can be effectively transferred. A bill of lading: is issued by or on behalf of the sea carrier to the person with whom the carriage contract is concluded records or evidences that contract and its terms serves as evidence of receipt of the cargo operates as a document of title Types of...
This Practice Note highlights significant cases and related materials pertinent to aviation finance. The cases are arranged by topic for ease of reference. Key cases relating to purchasing an aircraft Odyssey Aviation Ltd v GFG 737 Ltd - aircraft sale and purchase agreement; termination; buyer alleges breach of warranty as to title and breach of conditions precedent; seller also seeks to terminate the sale and purchase agreement [2019] EWHC 1927 ( Comm) On 28 May 2018, Odyssey Aviation Ltd ( Odyssey) and GFG 737 ( GFG) entered into an Aircraft Sale and Purchase Agreement ( APA). Under the APA, Odyssey agreed to sell, and GFG agreed to purchase, a Boeing Business Jet B737-72U (the Aircraft) for US$30m. The APA was governed by English law. Before the APA was concluded, on 23 April 2018, GFG paid a refundable holding deposit into an escrow account. The delivery under the APA was...
Banking & Finance-key dates and future developments tracker: 2021 [ Archived] This archived Banking & Finance key dates and future developments tracker is designed to help banking and finance lawyers monitor upcoming milestones, horizon scanning and significant changes. It also flags developments from other practice areas considered relevant to banking and finance; several of those teams publish their own trackers. This tracker does not aim to capture every consultation on financial services regulation (including derivatives and capital markets). Instead, it highlights those items the Banking & Finance team considers most pertinent to practitioners and facility documentation. For comprehensive coverage of European Union and US financial services regulatory developments, see Practice Note: Trackers and Timelines-financial services. This sets out a full list of timelines produced by the Financial Services team. Those timelines closely track developments across key EU Directives and Regulations, including: Fourth Money...
This Practice Note examines the Economic Crime ( Transparency and Enforcement) Act 2022 ( EC( TE) A 2022) as it applies to property transactions. For a broader summary of EC( TE) A 2022, see Practice Note: Register of overseas entities that hold UK property-fundamentals. The provisions establishing a register of overseas entities and requiring their registration at Companies House commenced on 1 August 2022, while the land ownership and registration measures took effect on 5 September 2022. Additional regulations under EC( TE) A 2022-such as those defining an ‘exempt’ overseas entity-are still awaited. Overseas entities and qualifying estates Overseas entities that own a qualifying estate in land in England and Wales must observe EC( TE) A 2022. An overseas entity, for these purposes, is any non- UK body corporate, partnership or other entity that is a legal person under the law that governs it. This may...
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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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