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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 key regulatory frameworks shaping the debt capital markets in (1) the EU and EEA, and (2) the UK are outlined below. Before Brexit, the UK depended on EU lawmakers for a substantial part of its financial services regime. As a result, the measures listed here are predominantly EU legislative acts, which continued to apply in the UK after IP completion day as retained EU law ( REUL)... From 1 January 2024, any REUL still in effect is termed ‘assimilated law’, pursuant to section 5 of the Retained EU Law ( Revocation and Reform) Act 2023. Over time, assimilated law will be superseded by rules made by the financial services regulators within a framework set by the government and Parliament. For information on the assimilation of REUL, see Practice Note: Assimilated law... Mi FID II/ Mi FIR The principal EU legislation governing the debt capital markets...
This Practice Note sets out, in brief, what conditions precedent are and how they feature in debt capital markets transactions. It also outlines the common conditions precedent typically included in the documentation for an issue of debt securities. What is a condition precedent? In many financings, the agreement recording the commitment to extend funds is executed some time before the date on which money is actually made available. In those circumstances, the obligation to fund is conditional upon certain requirements being fulfilled prior to drawdown. These requirements, known as conditions precedent, are ordinarily satisfied by providing specified documents. For information on conditions precedent in bank lending documentation, see Practice Note: Conditions precedent. Within a debt capital markets transaction, the conditions precedent are set out in the subscription agreement (for a standalone issue) or the programme (or dealer) agreement (for an issue under a...
ARCHIVED: This Practice Note has been archived and is not maintained. During the transition period, the principal EU rules broadly continued to apply for DCM lawyers (see Practice Note: Brexit—impact on finance transactions [ Archived]), but from IP completion day the position alters substantially. This Practice Note sets out a high-level overview of the practical consequences of IP completion day for DCM lawyers and signposts more detailed material. PROSPECTUSES Key EU legislation and Brexit SIs Regulation ( EU) 2017/1129 ( OJ L 168 30.6.2017 p.12) ( EU Prospectus Regulation) Retained Regulation ( EU) 2017/1129 ( UK Prospectus Regulation) The Official Listing of Securities, Prospectus and Transparency ( Amendment etc.) ( EU Exit) Regulations 2019, SI 2019/707; the Prospectus ( Amendment etc.) ( EU Exit) Regulations 2019, SI 2019/1234; and the Financial Services ( Miscellaneous Amendments) ( EU Exit) Regulations 2020, SI 2020/628 What are the key changes in practice from IP...
This Practice Note This Practice Note, relevant to both share purchase and asset purchase deals, sets out: the distinctions between a physical data room (a dedicated location containing hard copy materials) ( PDR) and a virtual data room (an online repository to which documents are uploaded) ( VDR), together with the considerations in deciding which option to adopt a synopsis of the key organisational matters for the seller and the seller’s team of advisers when creating a data room, including how to determine what to include and how best to structure the data room the documentation to be prepared by the seller/seller’s advisers and executed by those given access to the data room (namely a confidentiality agreement and data room rules) Although procedures will differ depending on whether a PDR or a VDR is used, the underlying purpose for...
Coronavirus ( COVID-19): Existing financings/utilised debt Do finance documents in your jurisdiction generally provide lenders with termination rights in a crisis? If so, are standard material adverse effect ( MAC) clauses enforceable in that context? Yes. Beyond LMA-based templates, Czech banks frequently embed MAC-related termination rights either in loan agreements or within their general terms and conditions ( GTCs), empowering the lender to terminate unilaterally, cancel commitments, or vary fees and/or interest rates, together with reimbursement of any additional costs. Typically, MAC wording covers, among other items, a failure by the borrower to perform obligations under the finance documents, a deterioration in the borrower’s financial condition or the value of the security provided, or an inability of the lender to exercise rights and pursue claims arising from the finance documents. Any termination must not be baseless, and the present epidemic does not, of itself, amount to a...
What are cryptoassets? One difficulty in grasping non-traditional money and assets is the inconsistent terminology. Regulators, tax bodies and commentators speak of digital currencies, virtual currencies, cryptocurrencies, cryptoassets and crypto tokens, and it is often uncertain whether the labels are being swapped freely or used with their distinct meanings in mind. For definitions, see Practice Note: Web 3.0, digital assets and cryptoassets—essentials. That Practice Note considers the benefits and drawbacks of using cryptoassets. A range of advantages helps explain their rapid rise in popularity, but these must be weighed against risks inherent in the cryptoasset. Pros of cryptoassets Below are some of the advantages of cryptoassets (notably when used as a fiat currency substitute): lower transaction costs compared with transfers of real currency and assets transparent costs and charges—hidden fees and extra charges common in other online payment methods are absent in Bitcoin...
Scope of this Practice Note This Practice Note outlines the principal risks to consumers from different categories of cryptoassets and related offerings, including staking, together with the consumer protection tools currently available and/or under consideration. What are cryptoassets? Understanding unconventional forms of money and assets is hampered by inconsistent terminology. Regulators, tax authorities and commentators alternately reference digital currencies, virtual currencies, cryptocurrencies, cryptoassets and crypto tokens, without always indicating whether these labels are used interchangeably or with precise distinctions. For definitions, see Practice Note: Web 3.0, digital assets and cryptoassets—essentials. Unless stated otherwise, this Practice Note adopts ‘cryptoassets’ as defined in section 417(1) of the Financial Services and Markets Act 2000 (as amended from time to time). Under section 417, a cryptoasset means any cryptographically secured digital representation of value or contractual rights that: can be transferred, stored or traded...
Introduction Alongside the formal frameworks of (i) the UNCITRAL Model Law on Cross- Border Insolvency (as implemented in England by the CBIR 2006, SI 2006/1030) and (ii) Regulation ( EU) 2015/848 (the EU Recast Regulation on Insolvency) operating between Member States, parties often opt to follow non-binding guidance to support cross-border restructurings and insolvencies, including: INSOL principles (2017) INSOL TW Guidelines ALI NAFTA Principles (2001) ALI/ III Co- Co Guidelines (2001) UNCITRAL Practice Guide (2009) Global Principles (2012) JIN Guidelines (2016) JIN Basic Guidelines (2025) These texts broadly mirror concepts in the EU Recast Regulation and the Model Law, reflecting the market view that swift, consensual and co-ordinated processes generally deliver stronger returns than fragmented, contested proceedings. England’s Chancery Guide (paras 21.90–21.91) encourages early consideration of adopting, with suitable modifications, one of the following for a...
This Practice Note summarises the issues raised in relation to the English law and EU choice of law rules relating to the voluntary assignment of receivables (also known as debts) in the context of receivables financing whether by way of an outright assignment or an assignment by way of security. For ease, this Practice Note considers only outright transfers, though the same analysis applies to security assignments. Historically, exposure to overseas debts has been limited through diversification, relatively modest receivable sizes and export debt concentration covenants. As receivables financiers expand cross-border and enter larger, more significant facilities, these traditional measures should be adjusted to guard against potentially material exposures to non- UK receivables. Assigning export debts carries hazards, the clearest being that, in a collect-out, a debtor may contest the effectiveness of the transfer. Between parties operating across borders, suitable local law advice is...
Formal creditors' committees in formal insolvencies (administration, liquidation, receivership and bankruptcy) In sizeable or intricate formal insolvencies, a formal creditors’ committee is commonly established and the relevant office holder will often consult it on significant matters, using it as a practical sounding board throughout the case. These committees tend to be formed where complexity or scale makes structured creditor input particularly valuable. Committees typically comprise three to five members, usually drawn from those creditors with the largest exposure to the company and, accordingly, the greatest interest in how the insolvency is conducted. Their composition reflects the creditors most engaged in the progress of the proceedings. Each member has a single vote, and an odd number of members is generally selected to avoid stalemates in voting. Members can usually reclaim their reasonable costs of attending creditors’ meetings. The committee’s main attention is often on the...
When assessing options at the outset, the underlying finance documents must be examined to identify the creditor majorities capable of blocking steps required to preserve an effective standstill arrangement, and to deliver a successful restructuring process (see Practice Notes: Key elements of a standstill agreement). Initial steps Companies increasingly have multiple discrete categories of creditor, often with competing agendas and priorities. The finance documents and any intercreditor agreements (see Practice Note: Intercreditor agreements for R& I lawyers) should be reviewed to establish, for each tranche of debt: the voting thresholds each creditor constituency must meet to waive existing covenant breaches/events of default (frequent features of a standstill) or to amend the finance documents the enforcement mechanics and procedures, together with the responsibilities of any security trustee/collateral agent/facility agent whether any buy-out rights exist A valuation (see Practice Note: Where the value breaks and negotiating strength) will highlight...
This Practice Note outlines the part ratings agencies play in the debt capital markets and sets out key documentary considerations for those agencies. Rating agencies and their role Rating agencies assign credit ratings to issuers of debt securities for public or private use. Issuers—whether corporate, sovereign, financial or other entities—may themselves be rated. That rating may equally apply to any debt securities they issue and are directly responsible for, where no credit enhancements are in place. Debt securities can be rated separately from the issuer where the issuer is a company created specifically to issue the debt (a special purpose vehicle ( SPV)) or where the instruments benefit from credit enhancements (eg a guarantee) that strengthen them beyond the issuer’s standing rating. A credit rating is obtained on application by the issuer to one or more rating...
What is a credit rating agency methodology? A credit rating agency ( CRA) methodology is the set of policies, processes and criteria a CRA uses when assigning or updating a credit rating. CRAs issue three principal categories of ratings: ratings of corporates ratings of sovereigns ratings of securities issued through a securitisation or comparable transaction (structured securities), where a special purpose vehicle ( SPV) holds a pool of assets and payments to investors depend on cash flows from those assets A credit rating for a corporate or sovereign generally reflects an evaluation of: the stand-alone credit strength of the entity prior to any external support any external assistance that could be available if the entity encounters financial stress the particular financial instruments being rated A credit rating for structured securities typically considers: the credit quality of the...
IOSCO standards The primary publication from the International Organization of Securities Commissions ( IOSCO) establishing regulatory benchmarks for credit rating agencies ( CRAs) is its Statement of Principles on the activities of Credit Rating Agencies, first issued on 25 September 2003 (the Statement of Principles). IOSCO also released the Code of Conduct Fundamentals for Credit Rating Agencies (the Code of Conduct), initially published in December 2004 and most recently updated in March 2015. CRAs are required to take IOSCO’s Statement of Principles and Code of Conduct into account in their work, and national regulators are required to reflect these standards within regulatory requirements and guidance. The Code of Conduct sets out the following definitions of a ‘credit rating’ and a ‘credit rating agency’: Credit rating—an opinion on the creditworthiness of an entity, a credit commitment, a debt or debt‑like...
Coronavirus ( COVID-19)—implications for structured products and securitisation transactions [ Archived] ARCHIVED: This Practice Note has been archived and is no longer being maintained. This Practice Note explores how the coronavirus ( COVID-19) outbreak affects structured products and securitisation transactions, and provides practical pointers for lawyers working in these fields. For continuing news and analysis relevant to structured products and securitisation transactions, see Practice Note: Coronavirus ( COVID-19) implications for Banking & Finance lawyers. Coronavirus ( COVID-19) Lawyers worldwide are confronting a set of shared issues linked to the coronavirus ( COVID-19) pandemic. Several matters are especially pertinent to banking and finance practitioners. For deeper coverage and commentary, see Practice Note: Coronavirus ( COVID-19) implications for Banking & Finance lawyers, which is updated on a regular basis with news, practical guidance and analysis addressing the impact of COVID-19 developments, and includes topics such as force majeure in...
ARCHIVED: This Practice Note has been archived and is no longer maintained. Coronavirus ( COVID-19) Lawyers worldwide have faced common concerns linked to the coronavirus ( COVID-19) pandemic. Several areas are especially pertinent to banking and finance lawyers. For fuller detail, see Practice Note: Coronavirus ( COVID-19) implications for Banking & Finance lawyers, with news, practical guidance and analysis on COVID-19 developments. This Practice Note highlights the key issues for trade and commodity finance during the COVID-19 outbreak. For general lending issues arising from the outbreak, see Practice Notes: Coronavirus ( COVID-19)—implications for lending transactions and Coronavirus ( COVID-19)— Banking & Finance frequently asked questions [ Archived]. International Chamber of Commerce ( ICC) guidance on its rules In April 2020, the ICC issued a guidance paper on the impact of COVID-19 on trade finance transactions subject to ICC rules. It offers technical guidance to the market on: force...
ARCHIVED: This Practice Note is archived and is no longer maintained Coronavirus ( COVID-19) Lawyers across the globe have been addressing shared concerns linked to the coronavirus ( COVID-19) outbreak. Several issues are especially pertinent for banking and finance practitioners. For additional detail and commentary, see Practice Note: Coronavirus ( COVID-19) implications for Banking & Finance lawyers, which is updated frequently with news, practical guidance and analysis on the impact of COVID-19 developments. This Practice Note sets out governmental and regulatory actions taken in response to the pandemic from a lending standpoint, the effects on facility agreements—viewed from both borrower and lender perspectives—and a series of practical considerations relating to executing transactions. We have compiled COVID-19 FAQs, bringing together common questions that may arise on lending deals during the crisis. We add to this list on a regular basis. To access the questions, see Practice Note:...
ARCHIVED: This note is archived and is no longer being maintained. It will not be updated further accordingly. This Practice Note explores how the coronavirus ( COVID-19) outbreak affects the debt capital markets ( DCM) and offers practical pointers for DCM lawyers. For continuing updates with news and analysis on issues relevant to DCM, see: Practice Note: Coronavirus ( COVID-19)—implications for Banking & Finance lawyers— Debt capital markets. Coronavirus ( COVID-19) Lawyers worldwide have been tackling shared areas of concern arising from the coronavirus ( COVID-19) pandemic. Several topics are of particular importance to banking and finance lawyers. For deeper detail and analysis, see Practice Note: Coronavirus ( COVID-19) implications for Banking & Finance lawyers, which is updated regularly with news, practical guidance and analysis on COVID-19 developments, and covers subjects such as force majeure in lending transactions and execution of documents, while also setting out the...
ARCHIVED: This Practice Note is archived and is no longer maintained. Lawyers worldwide have been contending with overlapping concerns arising from the coronavirus ( COVID-19) outbreak. Several themes are of acute significance for banking and finance practitioners. For expanded guidance and commentary, consult Practice Note: Coronavirus ( COVID-19) implications for Banking & Finance lawyers. It provides news, practical guidance and analysis on the effects of COVID-19 developments, and examines topics including force majeure, signing of documents, Brexit and LIBOR, as well as setting out consequences for a range of banking and finance transactions of different kinds. In addition, see Practice Note: Coronavirus ( COVID-19)—implications for lending transactions, which also highlights governmental and regulatory measures responding to the pandemic from a lending angle, consequences for facility agreements from both borrower and lender viewpoints, and various practical points in relation to completing deals and...
Covenants for title Where a property is disposed of (by conveyance, transfer or charge), the disponor will in most cases give a title guarantee, which carries with it the usual covenants for title. Although a landlord can give a title guarantee on the grant of a lease, in practice this happens infrequently. For this Practice Note, we describe the parties as the seller and the buyer, and call the instrument that effects the disposition the transfer. Covenants for title operate as warranties; they are contained in sections 1–13 of the Law of Property ( Miscellaneous Provisions) Act 1994 ( LP( MP) A 1994) and they apply to transactions of both freehold and leasehold land. Despite often being treated as boilerplate, it remains essential that both buyer and seller understand the impact of title guarantees and the implied covenants, the ways they apply in various...
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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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