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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 This Practice Note sets out the principal areas in which Brexit has a clear and immediate legal effect on the Great Britain ( GB) renewables sector. On 23 January 2020, the European Union ( Withdrawal Agreement) Act 2020 ( EU( WA) A 2020) was enacted, allowing the government to ratify the Withdrawal Agreement and transpose its terms into UK law. Owing to EU( WA) A 2020, the UK continued to be subject to EU law throughout the transition period established under that Agreement. The transition concluded at 11 pm ( GMT) on 31 December 2020. From that moment—defined in UK law as ‘ IP completion day’—core transitional measures ceased and substantial alterations began to apply across the UK’s legal framework. On 24 December 2020, the European Commission and the UK government confirmed an agreement in principle on the legal basis for the future UK‑ EU...
This Practice Note considers important alternative forms of leasing that may arise beyond conventional operating or finance leases. The most appropriate structure selected for any transaction will change from time to time, shaped by the taxation environment and by the regulations that exist in the relevant countries in which the arrangement is to be structured. As most leasing arrangements are set up to secure the maximum tax benefits and allowances available, the structure adopted will, to a significant extent, depend on the tax and accountancy laws in the particular jurisdiction. Synthetic leases Originating in the United States, synthetic leases are structured so that, for accounting purposes, they are recognised as a lease, yet for US federal tax purposes they are treated as a loan. These leases are typically employed to fund the construction or acquisition of property projects, significant assets or equipment, and can finance the entire cost at...
UK and US secondary (private) debt trading markets closely resemble each other when deals are executed on the document suites published by the Loan Market Association ( LMA) in the UK and the Loan Syndications and Trading Association ( LSTA) in the US. For details on the documentation, terms and mechanics for LMA secondary trades, consult the following Practice Notes: Overview of the principal documentation in a standard secondary debt trade Secondary debt trading — timeline for a typical trade Secondary debt trading — finalising the trade confirmation Key provisions of the LMA standard terms and conditions for secondary debt trading Over time, the two debt-trading regimes and conventions have markedly converged, so in most key respects they are largely alike. That said, there remain certain material distinctions between the regimes and conventions, as set out...
What does this Practice Note cover? This Practice Note explains the scope of Sections 7 to 14 of the International Swaps and Derivatives Association, Inc ( ISDA), often described as the ‘back-end’. ISDA documents The 1992 and 2002 ISDA Master Agreements (the Master Agreements) are standard-form documents produced by ISDA. In this Practice Note, any reference to Sections of a Master Agreement or to Parts of a Schedule is, unless indicated otherwise, a reference to the 2002 ISDA Master Agreement and its Schedule. For general information on negotiating ISDA Master Agreements, see Introduction to negotiating ISDA documents. The 'back end' of an ISDA Master Agreement This element of the Master Agreement corresponds to what is commonly termed the ‘boilerplate’ in financing documentation. See Boilerplate for more information. It sets out provisions addressing matters such as currencies, governing law, notices and related points. Although it is not usually the...
This Practice Note outlines the core principles for recovering damages arising from contractual breach. It addresses the compensatory purpose of damages; categories covering pecuniary and non-pecuniary loss; nominal damages; damages available under the Sale of Goods Act 1979 ( SGA 1979); the operation of default damages clauses; contractual mechanisms for remedying a breach; and the availability of interest. As stated by Baron Parke in Robinson v Harman, the party who suffers loss through breach should, in terms of damages, be placed in the position they would have occupied had the contract been performed... Compensatory function of damages for breach of contract The ordinary role of contractual damages mirrors that in tort: they are compensatory (see, for example, British Westinghouse v Underground Electric Rlys). The purpose is to make good the actual loss sustained by the innocent party and, so far as money can achieve it, to place them in...
Development of the Loan Market Association ( LMA) documentation The initiative to create the LMA’s Primary Documents commenced in 1998, prompted by market appetite for a consistent template syndicated facility agreement. It arose in direct response to widespread demand for a standard form that the market could rely on for syndicated facilities. The recommended investment grade syndicated facility agreements (the Primary Documents) were produced collaboratively by representatives of the LMA, the British Bankers’ Association (now part of UK Finance), the Association of Corporate Treasurers and major City law firms. Their purpose is to reduce time and expense by offering a baseline that mirrors prevailing market practice for a syndicated loan to a corporate borrower with an investment grade credit rating. These papers are intended only as a foundation; in practice, they cannot be used without tailored amendments or additions. The LMA has revised the...
When considering a claim for damages When a claim for damages is assessed (see Practice Note: Contractual damages—general principles and related content), the court applies the doctrines of causation and remoteness. A party’s responsibility to reduce its loss is addressed in Practice Note: Mitigation in civil damages claims. For assistance on causation within professional negligence, consult Practice Note: Causation and remoteness in professional negligence claims. For tort-based claims, see Practice Note: Causation and remoteness in tort and negligence claims. Note: matters concerning causation and the ‘but for’ test within the specific arena of insurance policy wording fall outside this Practice Note, but were examined in depth in the coronavirus ( COVID-19) test case, The Financial Conduct Authority ( FCA) v Arch Insurance ( UK) Ltd, the judgment emphasising the necessity of homing in on the central issue in ‘but for’...
What is the ISDA Schedule? The International Swaps and Derivatives Association ( ISDA) operates a layered documentation framework, often termed the ISDA documentation architecture. For any trade within this framework, the key components are: master agreement schedule to the master agreement credit support documents confirmation The ISDA Master Agreement is a standard-form umbrella contract setting out boilerplate provisions. The Schedule complements and varies the Master Agreement where the parties require. It enables the parties to adapt the Master Agreement to their specific needs by inserting amendments, or by adding alternative or additional terms. The Schedule is the element of the ISDA Master Agreement that the parties negotiate. The bulk of protection is provided by the Master Agreement itself. If transactions are undertaken before the Schedule has been negotiated and agreed, the Confirmation should specify that a deemed Master Agreement exists. Nonetheless, best practice is to have the Schedule settled and agreed prior to...
What does this Practice note cover? This Practice Note addresses the 1995 ISDA Credit Support Deed ( Security Interest— English law), the standard-form credit support document for derivatives issued by the International Swaps and Derivatives Association, Inc. ( ISDA). Commonly referred to as the English law CSD or simply the English law deed, it is the focus here. This Practice Note outlines the layout and principal characteristics of the English law deed. Documentation structure of the English law Deed The English law Deed: a standalone document The English law Deed operates as an independent instrument. It is not incorporated into the schedule to the master agreement and has to be executed in its own capacity as a deed. It must bear the date on which it is executed, and all formalities relevant to the execution of a deed must be observed (for additional detail, see Practice Note:...
Introduction to project finance structures This Practice Note explores what ‘structure’ signifies within a project finance deal and flags the principal considerations that shape how such transactions are put together. It examines the Azura Edo independent power project in Nigeria ( Azura Edo IPP) as a detailed case study, using it to highlight and clarify several recent, inventive structuring approaches in project finance that have been deployed successfully to address specific risks and hurdles. It is not a primer on project finance and therefore presumes readers have a basic grounding in the subject. For a starting point on project finance, see Practice Note: Introduction to project finance. The emphasis here is on construction financings—that is, brand‑new schemes built from the ground up (often called ‘greenfield projects’)—rather than the disposal or acquisition of already operating assets (commonly known as secondary market...
Documents for a typical project finance transaction These can be divided into three main groups: Finance documents — set the rules for the project’s debt funding, covering the senior debt together with any related facilities (for example, a cost overrun facility or another standby facility) and any ancillary facilities (for example, a letter of credit facility or a working capital facility). Project documents — the suite of contracts on which the project rests, typically including the concession agreement (if any), the construction contract, the operation and maintenance contract, and supply and offtake contracts (for more information, see: Project documents—issues for lenders—overview). Shareholder or equity documents — govern the equity investment terms and the relationships between the project’s investors (for more information on equity support in project finance, see Practice Note: Equity support in project finance). This Practice Note focuses on the first set — the finance...
A misrepresentation claim requires that the statement in question must have been untrue. This is the ‘falsity’ element. Once falsity is established, the subsequent enquiry is whether that untrue statement was made fraudulently or innocently, and if it was made innocently, there is then a further enquiry, namely whether any negligence was involved in the innocent making of that untrue statement. This Practice Note examines the falsity requirement in a misrepresentation claim and explains the distinctions and reasons for pleading fraudulent misrepresentation rather than negligent or innocent misrepresentation, with reference to the Misrepresentation Act 1967 ( MA 1967). It also sets out a number of pointers for assessing a misrepresentation claim. For general guidance on misrepresentation claims, including what they are (and are not) and the key constituent elements for bringing a claim for actionable...
STOP PRESS: The Loan Market Association ( LMA) has issued refreshed editions of the standard terms and conditions for Par and Distressed Trade Transactions, the complete set of Funded Participation and Risk Participation Agreements, and the Secondary Debt Trading Documentation User Guide, all coming into force on 17 March 2026. The revisions cover the deletion of LIBOR references, updates to IBOR rate definitions and the Target2 definition, plus refreshed ERISA representations that incorporate further exemptions to the prohibited transaction rules under ERISA and the US Internal Revenue Code. Access to the new documents is restricted to LMA members via the LMA’s Documentation Hub. Most secondary debt trades are arranged over the phone or by email. After the trade call or email dialogue, the counterparties set out the agreed trade terms in a trade confirmation. For additional detail, see Practice Note: Secondary debt...
What does this Practice Note cover? This Practice Note outlines the cure periods applicable to each Event of Default described in Section 5 of the ISDA Master Agreement, presenting them as bullet points and in a table. Under an ISDA Master Agreement, when an Event of Default (as defined in Section 5(a) of the ISDA Master Agreement) arises, the Defaulting Party is typically afforded a window in which to remedy the breach. Consequently, until that remedy period expires, a derivative cannot be closed out early on the basis of an Event of Default. The various Events of Default attract different cure periods, which are detailed below. Broadly, the cure periods are shorter in the 2002 ISDA Master Agreement. This reflects the ISDA working group’s view that, during times of market volatility, the cure periods in the 1992 ISDA Master Agreement were excessive and risked...
In most project finance deals, the project company (ie the borrower) is incorporated as a special purpose vehicle ( SPV) formed solely to carry out the project in question. As a result, it lacks its own seasoned staff and, typically, its assets consist only of the project assets. The sponsor (typically an entity with greater financial strength and expertise) is frequently expected, in practice, to support the project company so that the project succeeds. For further detail on sponsors, see Practice Note: Project finance—key project parties— Sponsor. What is equity support in a project finance transaction? Equity support for a project refers to any type of backing, of whatever nature, the sponsor provides to the project company itself in practice......
What is a guarantee? A guarantee is a commitment between a guarantor and a creditor, under which the guarantor agrees to be liable for another party’s obligations (the principal). For a guarantee to be valid, it must be in writing and signed by the guarantor, or by an agent authorised to sign on their behalf. Why are guarantees relevant to insolvency? They offer a creditor reassurance for sums owed by a debtor where there are doubts about the debtor’s long‑term solvency. They are frequently used by: banks that lend to companies and require guarantees from other group companies or company directors landlords, who often secure guarantees from the tenant company’s parent or from one or more directors factoring companies As guarantees are typically called upon when a debtor is insolvent or in financial distress, they appear regularly in insolvency...
What are ground source heat pumps? Ground source heat pumps ( GSHPs) are central heating and/or cooling systems that transfer heat between the building and the ground. They draw on stored solar and ground energy, raising it to a more useful temperature for the heating system. In summer, they can remove heat from the building and release it into the ground to provide cooling. This practice is common in China, Japan, the USA and parts of Europe. For further details on global GSHP patterns, refer to the Renewables Global Status Report. How ground source heat pumps work Soil temperature varies by location, but in the UK it stays stable at around 11–12°C once you go below roughly 5 metres. At this depth the ground forms a large thermal store, absorbing the sun’s heat in summer and giving it back in winter. GSHPs capture this...
This Practice Note outlines green loans and the principal considerations when preparing a green loan agreement. It centres on the Green Loan Principles ( GLP) issued by the Loan Market Association ( LMA), the Asia Pacific Loan Market Association ( APLMA) and the Loan Syndications and Trading Association ( LSTA)... Clarifies the meaning of a green loan Introduces the GLP and the accompanying GLP guidance Sets out the four core components of a green loan under the GLP and summarises the related guidance Condenses GLP and GLP guidance on what qualifies as a green loan, on reviews, and on greenwashing risks Provides sources for precedent wording, including the Loan Market Association draft provisions, plus drafting pointers What is meant by a green loan? Under the GLP, green loans encompass any form of loan instrument and/or contingent facility (for example, bonding lines,...
Loan market and developments Provide a concise outline of the present condition of the loan markets in your jurisdiction and any notable recent shifts. Bank lending facilities remain the principal source of finance for small and medium-sized enterprises ( Petites et Moyennes Entreprises) and mid-cap businesses ( Entreprises de Tailles Intermédiaires). That said, these companies increasingly seek to broaden their funding mix to avoid overreliance on bank borrowing and to secure instruments with longer maturities. Corporates are turning more frequently to bond issuance, in particular via unirate loan structures, which deliver a single tranche blending senior and mezzanine debt under one credit line taken up by a private fund. The chief obstacle to widening funding channels lies in the French banking monopoly restrictions described below. This ongoing shift aims to balance liquidity needs, reduce concentration risk with lenders, and align funding horizons with...
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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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