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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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The PRIIPs Regulation and level 2 measures This Practice Note sets out an overview of the Packaged Retail and Insurance-based Investment Products ( PRIIPs) regime in Regulation ( EU) 1286/2014 and the related Level 2 measures. A key element is the duty on product manufacturers to prepare a standard, pre-sale Key Information Document ( KID) for PRIIPs, allowing retail investors to compare products and decide whether a PRIIP is suitable for them. The approach draws heavily on the undertakings for collective investment in transferable securities ( UCITS) Key Investor Information Document ( KIID). Regulation ( EU) 1286/2014 was published in the Official Journal of the European Union on 9 December 2014 and has applied since 1 January 2018, with a UCITS exemption running until 31 December 2022. This carve-out also covers non- UCITS retail funds that produce a UCITS KIID ( Article 32(2) of...
Introduction—transactional Islamic finance There is a diversity of views and guiding maxims expressed by members of Shari’ah boards when applying Shari’ah to commercial contexts, which in turn can lead to apparent divergence in the legal documents used within Islamic finance transactions. In response to these recognised market inconsistencies, attention worldwide has increasingly turned to the development of national, centralised regulatory authorities dedicated to Islamic finance. As an illustration, in 2017, following the national sanction of an Islamic finance industry, Morocco created by royal decree the Moroccan Shari’ah Committee for Participative Finance, comprising 10 Islamic scholars and financial experts, to oversee and regulate the newly established financial sector. The Central Bank of Bahrain (the CBB), which has overseen Bahrain’s financial system since 2002, has taken a comparable path, announcing in September 2017 that all banking...
A Shari’ah compliant leasing agreement Under Shari’ah, leasing is arranged as an ijarah, which may resemble either an operating lease or a finance lease. The ijarah structure determines how the asset is treated at the close of the rental term and how value is recovered. Operating lease: the asset is handed back to the lessor when the rental period ends (comparable to hiring a car). Finance lease: the total rent payable equals at least 100% of the asset’s full market value and, at expiry, title may transfer to the lessee. For further detail on these lease types, see Practice Notes: Operating leases and Finance leases. In practical terms, arranging a Shari’ah compliant lease involves only limited departures from a conventional lease. As ijarah is used chiefly for Shari’ah compliant asset finance and residential mortgages, structures typically envisage the asset passing to the lessee on...
In most bond or note offerings, the issuer will appoint an agent—or more frequently a panel of agents—to perform a range of administrative tasks on its behalf in connection with the issue. One agent will co-ordinate the activities of the others. Where the transaction does not include a trustee, that co-ordinating role falls to the fiscal agent. If a trustee is involved, the principal paying agent performs the co-ordinating function instead. The primary benefit of a fiscal agency structure for a straightforward bond issue is the potential for lower costs overall. By comparison, putting in place the alternative arrangement with a trustee and principal paying agency is typically more expensive to establish in practice. For ease of reference in this Practice Note, the term ‘bonds’ is used in a generic sense to cover all forms of debt securities (including bonds, notes and...
Practice Note This note summarises the applicable law on limitation arising in claims against constructive trustees, encompassing claims against company directors and other parties in disputes alleging breach of fiduciary duty. It examines section 21(1) of the Limitation Act 1980 ( LA 1980) and identifies the situations in which that provision applies, outlining when and how it is engaged in such cases......
Case law on guarantees is both extensive and intricate. A firm grasp of the judicial principles is vital when drafting and negotiating guarantees. This Practice Note highlights key authorities and related material on guarantees. The cases are grouped by topic and include: cases on the characteristics of guarantees cases on the formalities to create a guarantee cases on undue influence when taking an individual’s guarantee cases on guarantor rights cases on guarantor protections and variation of the underlying transaction cases on the rights and obligations of co‑guarantors cases on discharge or release of a guarantee Key cases relating to the characteristics of guarantees Names of Parties: Moschi v Lep Air [1972] 2 All ER 393 Judgment Date: 26 April 1972 Case Summary: Leading authority confirming the secondary nature of a guarantee. A...
This Practice Note has been archived and is no longer maintained. Lexis+® UK are collaborating with INSOL Europe on a joint initiative to source articles from INSOL Europe’s national correspondents across EU Member States to compile a table distilling their findings, also drawing on Lexology Panoramic (see News Analysis: INSOL Europe/ Lexology Panoramic launch Joint Project on ‘ How EU Member States recognise insolvency and restructuring proceedings of a third country’). It examines how EU Member States would recognise insolvency or restructuring proceedings begun in a third country, such as the UK (post Brexit), the US, Japan, Australia or Canada. The table is intended only as a guide to the general principles and you should always consult local lawyers in the relevant jurisdiction to confirm the measures currently in force and the effect of any particular circumstances or nuances on your...
This Practice Note is archived and is no longer kept up to date. Regulation ( EU) 2019/834 ( EU EMIR REFIT) appeared in the Official Journal of the EU on 28 May 2019, with application from dates starting on 17 June 2019. Regulation ( EU) 2019/2099 ( EU EMIR 2.2) was published in the Official Journal of the EU on 12 December 2019 and applies from 1 January 2020. This Practice Note outlines the amendments to Regulation ( EU) 648/2012 ( EU EMIR) introduced by EU EMIR REFIT and EU EMIR 2.2. For current detail on EU EMIR, see Practice Note: EU EMIR—essentials and Checklist: EU EMIR—timeline. EU EMIR REFIT The following sets out the principal adjustments to EU EMIR made by EU EMIR REFIT. EMIR REFIT has applied since 17 June 2019, unless otherwise...
This Practice Note outlines the principal elements of the EU’s prudential rulebook: the Capital Requirements Directive IV ( Directive 2013/36/ EU) ( CRD IV) and the Capital Requirements Regulation ( EU) 575/2013 ( EU CRR) (together, the CRD IV package or CRD IV), which implemented the Basel III global capital adequacy framework within the EU. For concise background on the Basel Accords, including Basel III, see Practice Note: Introduction to the Basel Framework— Basel III and Basel 3.1. Background to CRD IV and EU CRR Basel III is a worldwide suite of reforms establishing international standards for capital adequacy in the aftermath of the 2008 financial crisis. The G20 Declaration of 2 April 2009 on ‘ Strengthening the Financial System’ urged consistent global action to enhance transparency, accountability and regulation by raising both the quantity and quality of capital held by banks. It also called for a...
This Practice Note outlines the European Commission’s July 2020 capital markets recovery package, created to mitigate the impact of the coronavirus ( COVID-19) pandemic. The initiative makes focused adjustments to key frameworks so that capital markets can more readily support European businesses as they emerge from the coronavirus crisis, including: EU Prospectus Regulation ( EU) 2017/1129 Markets in Financial Instruments Directive 2014/65/ EU ( EU Mi FID II) EU Securitisation Regulation ( EU) 2017/2402 ( OJ L 347 28.12.2017 p 35) Capital Requirements Regulation ( EU) 575/2013 ( EU CRR) Background to the capital markets recovery package On 24 July 2020, the European Commission adopted the capital markets recovery package as part of its broader coronavirus ( COVID-19) recovery agenda. In April 2020, it had already advanced a targeted banking package to ease lending to households and businesses across the EU (see...
ARCHIVED: This Practice Note is archived, and is no longer maintained. What is the Capital Markets Union? The Capital Markets Union ( CMU) is a flagship political initiative of the European Commission, unveiled on 30 September 2015 with the publication of the Action Plan for Capital Markets Union. The CMU agenda was subsequently realigned and broadened in the Commission’s Communication on the Mid- Term Review of the Capital Markets Union Action Plan, issued on 8 June 2017, and elements of the programme are periodically refined and advanced as CMU work progresses and EU and industry bodies react to evolving economic and political conditions. On 24 September 2020, the European Commission released a new CMU action plan. For information, see September 2020 CMU action plan. For information on CMU developments, see Practice Note: The Capital Markets Union—recent news [...
ARCHIVED: This document has been archived and is no longer maintained. 21 October 2021 – AFME highlights surge in European capital markets activity— LNB News 21/10/2021 27 12 October 2021 – EBF publishes paper reviewing EU securitisation framework— LNB News 13/10/2021 71 28 September 2021 – ESMA work programme sets 2022 priorities— LNB News 28/09/2021 48 22 September 2021 – ICMA AMIC answers Commission consultation on EU Securitisation Regulation— LNB News 22/09/2021 72 7 September 2021 – EBA and ECB urge full, timely and faithful EU Basel III implementation— LNB News 07/09/2021 61 2 August 2021 – European Commission seeks ESMA and EIOPA advice on retail investor protection— LNB News 02/08/2021 67 15 July 2021 – Commission staff working document: ‘ Monitoring progress towards a capital markets union: a toolkit of...
ARCHIVED: This document is archived and no longer maintained. This overview outlines high-level divergence between Regulation ( EU) 2017/2402 ( EU Securitisation Regulation) and Assimilated Regulation ( EU) 2017/2402 ( UK Securitisation Regulation). ‘ Formal’ denotes different drafting and/or legislative cross‑references without any substantive alteration to scope or requirements. General definitions Level: Formal. There is a formal divergence in the definitions of ‘sponsor’ and ‘institutional investor’. Sources: Article 2 of Regulation ( EU) 2017/2402 and Article 2 of Assimilated Regulation ( EU) 2017/2402. For detailed guidance, see Practice Note: UK Securitisation Regulation—essentials [ Archived]— Securitisation Regulation— General definitions. Criteria for traditional STS securitisations—general Level: Formal. Sources: Articles 20, 21, 22, 24, 25 and 26 of Regulation ( EU) 2017/2402 and Articles 20, 21, 22, 24, 25 and 26 of Assimilated Regulation ( EU) 2017/2402. For detailed guidance, see Practice Note: UK...
STOP PRESS: Regulation ( EU) 2024/2809, part of the EU Listing Act package, was published in the Official Journal of the EU on 14 November 2024 and became effective on 4 December 2024. The measure updates the EU Prospectus Regulation. Certain elements took effect immediately, while others carry lead‑in periods of 15 or 18 months—specifically from 5 March 2026 and 5 June 2026, respectively. Transitional rules permit, until their expiry, prospectuses approved up to 18 months after 4 December 2024 to remain governed by the EU Prospectus Regulation as it stood at the point of approval. For more information, see: The EU Prospectus Regulation—essentials. UK— The UK’s prospectus framework is presently grounded in the EU Prospectus Regulation, retained in domestic law post‑ Brexit as the UK Prospectus Regulation. The UK has been reassessing its regime as part of broader initiatives to reform UK capital...
FORTHCOMING CHANGE: This Practice Note sets out the law as it currently stands, though elements could be affected by the Digital Omnibus proposals released on 19 November 2025 under the European Commission’s ‘simplification’ agenda. For details, see Practice Note: EU Digital Omnibus—tracker. It introduces the EU’s General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR), and the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR). The UK data protection law collection and the EU data protection law collection compile further core guidance on these regimes and are recommended starting points for research. In brief, data protection law across the EEA (the EU together with Iceland, Norway and Liechtenstein) and the UK aims to ensure that information about living individuals (‘personal data’) is treated fairly and responsibly. To that end, both EEA and UK data protection laws impose...
This Practice Note explains how derivatives are recorded under the principal master agreements relied upon in the EU and the UK. These encompass frameworks sponsored and developed by the International Swaps and Derivatives Association, Inc. ( ISDA), the European Banking Federation ( EBF), the French Banking Federation ( FBF), the Association of German Banks, the Spanish Banking Association and the Spanish Confederation of Savings Banks... How do master agreements work? A master agreement is a set of standard provisions pre-agreed by the parties that applies to all transactions of the same type between them. For each individual trade, the parties only need to settle the specifics—principally the product included under the master, the commercial terms, and, where relevant, any bespoke provisions that vary the master wording... What are the main European derivative master agreements? The principal derivative master agreements used in Europe are sponsored by: ...
What is a clearing house? The clearing obligation set by the European Markets Infrastructure Regulation ( EU) No 648/2012 ( EU EMIR) and, from IP completion day (31 December 2020) in the UK, by assimilated Regulation ( EU) 648/2012 ( UK EMIR), requires that all eligible derivatives are sent for clearing via a central counterparty (a clearing house, or CCP). For more on the obligation, see Practice Note: Clearing obligation. EU EMIR was reviewed in 2019; the revised framework, EU EMIR REFIT ( Regulation ( EU) 2019/834), has applied since 17 June 2019. In the UK, UK EMIR substantially carries across the EU EMIR Refit changes that were operative immediately before IP completion day. EU EMIR is further amended by Regulation ( EU) 2019/2099 ( EU EMIR 2.2) concerning procedures and authorities for CCP authorisation and the requirements for recognising third-country CCPs, effective from 1 January 2020. These...
In numerous restructuring scenarios, setting up a creditors’ committee (or steering committee) at an early stage can materially facilitate talks between the debtor and its creditors, often producing a quicker outcome and improved recoveries for the creditor body overall. A committee might be formal or ad hoc/informal (see Practice Note: Informal creditors’ committee in a restructuring) and is typically composed of creditors from the same class. It remains in place until a successful restructuring is agreed and carried out, or until negotiations over the restructuring fail. In a consensual restructuring, no statutory regime or best-practice guidance governs the creation of committees (unlike in formal insolvencies where Statements of Insolvency Practice ( SIPs) 15 and 6 apply—see Practice Note: Statements of Insolvency Practice—a quick guide, SIP 15, which offers guidance to insolvency practitioners on reporting and supplying information to committees, and also the guide...
What is an equity derivative? An equity derivative is a financial contract that takes its price or value from the behaviour of a share-based asset or another equity-linked variable, providing economic exposure to that performance. Such derivatives can be dealt on-exchange or over the counter (see further details below). They can also be structured as funded or unfunded. Funds and investors chiefly employ them for speculation, while end users and banks use them as hedging tools for commercial purposes. They also serve numerous other purposes, which will be discussed in more detail below. Types of equity derivative instruments Equity derivative instruments fall into the following five principal categories: Options — the two core varieties are puts and calls. A put gives its holder the right to sell an underlying asset (for example, shares) to a counterparty at an agreed price on a specified future date. A call grants its holder the...
EPs ( EPs) provide a framework for identifying, evaluating and controlling environmental and social risks within project financings. Launched in 2003 by the International Finance Corporation ( IFC), backed by ten financial institutions, they have evolved into the financial sector’s baseline for due diligence and oversight, guiding responsible risk decisions. Institutions adopt the EPs to confirm that financed projects are delivered in a socially responsible way and embody robust environmental management; after adoption, they commit to offer financial services to project financings only where the EPs’ criteria are satisfied. The EPs have directed the project finance market’s focus towards social and community standards and accountability, encompassing stringent requirements for indigenous peoples, labour protections, and engagement with locally affected communities. They have also encouraged alignment around shared environmental and social norms and helped catalyse the creation of additional responsible environmental and social management practices across 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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