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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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This Practice Note explores the availability of proprietary remedies (that is, remedies attaching to specific property, as opposed to a personal remedy, for example a damages claim) in the wake of rescission and rectification. Where a contract (or a gift) has been rescinded, or a contract has been rectified, one party may find themselves having incurred some loss as a consequence of the rescission or rectification. For example, when a contract is unwound the purpose is to restore the parties to the position they would have occupied as if the contract had never been made; yet, before rescission, property may have moved from one party to another, or to someone else. In that way, a claim in restitution may become available to deliver an appropriate form of relief. Such relief focuses on the property itself alone. What is...
What does this Practice Note cover? This Practice Note outlines the drafting of an offering memorandum ( OM) for offerings conducted in reliance on Rule 144A (17 CFR § 230.144A) and Regulation S under the Securities Act of 1933, as amended (the Securities Act). It provides an overview of the usual drafting workflow, disclosure obligations, and the sections commonly included in an OM. For a Rule 144A/ Regulation S transaction, the offering document is generally called an 'offering memorandum' or 'offering circular' (rather than a 'prospectus', the term used for the offering document for a registered offering). As with other offering documents, a Rule 144A/ Regulation S OM performs two principal roles: It serves as a disclosure document prepared to satisfy applicable securities law disclosure requirements and to lessen potential liability risk for offering participants under those laws. It also often functions as the...
Loan market and developments Please provide a concise overview of the present condition of the loan markets in your jurisdiction together with any material recent developments. Reflecting on the last three to four years, China’s loan market has experienced a succession of notable shifts and reforms. For the purposes of this Practice Note alone, ‘ PRC’ or ‘ China’ denotes the People’s Republic of China, excluding the Hong Kong Special Administrative Region, Macau Special Administrative Region and Taiwan. The ongoing structural overhaul of both the financial supply side and the overarching regulatory architecture has been advancing in a measured and steady fashion. On 18 May 2023, the China Banking and Insurance Regulatory Commission ( CBIRC), the authority supervising the banking and insurance industries, was superseded by the National Financial Regulatory Administration ( NFRA). NFRA’s mandate has been broadened beyond that of CBIRC, and it now...
Step-by-step guide The protection buyer (party A) and protection seller (party B) put in place an ISDA Master Agreement, Schedule and a confirmation between them to record a CDS. The CDS identifies a reference entity. In that confirmation, party A and party B state that the transaction will be settled physically if a credit event occurs on that reference entity. Party A agrees to pay party B a fixed fee or premium—either as an upfront sum or as periodic payments over the life of the CDS contract. Party A also agrees to deliver deliverable obligations to party B (refer to Credit derivatives—credit events— Obligations for......
Scope of Practice Note This Practice Note addressing breach of contract explores what can constitute a contractual breach, and the judicial approach to assessing it by carefully construing the parties’ obligations—embracing both the ‘principle of futility’ and the ‘prevention principle’. It also sets out, in particular, the available responses to breach, namely an express contractual power to terminate for breach, or termination at common law for repudiatory breach, together with contractual damages and any various statutory constraints upon the remedies and liabilities arising from breach of contract. Note: a breach of contract may (though not invariably) lead to the agreement being terminated or brought to an end. Yet there are numerous other mechanisms by which a contract may end besides breach, and other circumstances in which a contract can be treated as void or rescinded. For guidance on these topics, see the...
Loan market and developments Moody’s retains a ‘stable’ outlook for Bermuda’s banking sector, reflecting contingent liability risk linked to the island’s sizeable banking system. The agency notes that Bermuda’s very strong institutional framework, very high per capita income and robust external position are fundamental credit strengths that enhance the jurisdiction’s resilience to prospective shocks. The Bermuda Monetary Authority confirms that, as at September 2024, banks’ capital adequacy sits comfortably above Basel III minima, with the sector reporting: a risk asset ratio of 25.6%; a common equity tier 1 capital ratio of 24.2%; a leverage ratio of 7.7%. Looking ahead, no significant changes are anticipated to Bermuda’s banking or contract laws. Basel III regulatory standards have now been fully phased in, including the Liquidity Coverage Ratio, the Capital Conservation Buffer and the Net- Stable Funding Ratio...
Key elements of bai salam As set out in greater detail in the Practice Note: The structure and required elements of a bai salam transaction, in particular with respect to the differing views amongst Shari'ah schools of thought, there are several essential conditions that must be satisfied for a valid bai salam contract to stand: payment of the full purchase price by the buyer to the seller at the moment the contract is concluded and the sale takes effect precise, unequivocal description of the asset’s quality and quantity, generally by reference to recognised trade standards, with all possible particulars expressly set out the contract must not relate to a specific or unique asset clear delivery provisions, in particular the date and location for delivery Additional requirements apply to a parallel bai salam: the parallel bai salam must be...
ARCHIVED: This archived tracker presents a concise outline of amendments to provisions in the former UK Prospectus Regulation, which is now revoked. Tracker overview This tracker brings together legislative and regulatory updates relating to the revoked UK Prospectus Regulation ( Assimilated Regulation ( EU) 2017/1129), and signposts pertinent background materials alongside amending and implementing measures. The UK Prospectus Regulation is now revoked. The current UK framework for public offers of securities and for admitting securities to trading on a regulated market is set out in the Public Offers and Admissions to Trading Regulations 2024, SI 2024/105 ( POATRs), together with the FCA’s Prospectus Rules: Admission to Trading on a Regulated Market sourcebook. For fuller guidance, see Practice Notes: UK prospectus regime reform and The public offers and admissions to trading regime (...
ARCHIVED: This Practice Note was archived and is not maintained. This Practice Note summarises the main regulatory and legislative landscape pertinent to in-house banking and finance lawyers. It addresses the regimes and statutory frameworks relating to: lending transactions derivatives transactions debt capital markets structured products and securitisation For additional detail on these transaction categories, and the wider governing regulations and legislative framework, consult the following Practice Notes: The impact of regulatory and legal changes on facilities agreements Regulatory issues in lending transactions—overview European regulation of the debt capital markets—one‑minute guide US regulation of debt capital markets—one‑minute guide EU and UK regulation of derivatives—one‑minute guide EU and UK regulation of structured products and securitisation—one‑minute guide US regulation of structured products and...
ARCHIVED: This Practice Note is archived and no longer updated. For the 2020 iteration of this rule, refer to Incoterms® 2020 Rules— EXW Ex works. ICC Publishing SA has authorised reproduction of these ICC publications. Copies and additional ICC titles are obtainable from: ICC Publishing SA, 33-43 avenue du Président Wilson, 75116 Paris, France ICC United Kingdom, 1st Floor, 1-3 Staple Inn London, WC1V 7QH, United Kingdom www.iccwbo.org From 1 January 2020, Incoterms® 2010 were superseded by Incoterms® 2020. For the EXW term effective from that date, see Practice Note: Incoterms® 2020 Rules— EXW Ex works. EXW (insert named place of delivery) Incoterms® 2010 Guidance note Usable with any chosen mode of transport, including multimodal shipments. Best suited to domestic dealings; for international trade, FCA is generally the better choice. Ex Works means delivery occurs when the seller places the goods at the...
ARCHIVED: This Practice Note is archived and no longer maintained. For the rule as updated in 2020, refer to Incoterms® 2020 Rules— FCA Free Carrier. ICC publications appear here with permission from ICC Publishing SA. These and other ICC titles can be obtained from ICC Publishing SA, 33–43 avenue du Président Wilson, 75116 Paris, France; from ICC United Kingdom, 1st Floor, 1–3 Staple Inn, London, WC1V 7QH, United Kingdom; and via www.iccwbo.org. From 1 January 2020, Incoterms® 2010 were superseded by Incoterms® 2020. For the FCA term applicable from that date, see Practice Note: Incoterms® 2020 Rules— FCA Free Carrier. FCA (insert named place of delivery) Incoterms® 2010 Guidance note This rule applies regardless of the chosen mode of transport and can also cover multimodal shipments. ‘ Free Carrier’ signifies that the seller presents the goods to the carrier, or another party...
Introduction to the airline industry The purpose of this Practice Note is to present an overview of certain key features of airline insolvencies in England and Wales, and to highlight legal and practical considerations that can shape strategies and outcomes when an airline enters insolvency proceedings. This Practice Note forms part of a wider suite on airline insolvency. For further information, see the following Practice Notes: Guide to airline insolvency—insolvency proceedings, receivership, restructuring plans and schemes of arrangement Guide to airline insolvency—international considerations and implications for office-holders There are particular aspects of the airline industry that set airline insolvencies apart from those of companies in many other sectors. In particular: the financing structures for the manufacture and acquisition of aircraft, together with the related ownership and leasing frameworks, are often highly complex and can differ significantly from one case to another the...
Liability for negligent misstatement can, in various ways, be avoided and/or curtailed. For an explanation of how to found such a claim, see Practice Note: Negligent misstatement—founding a claim. For general guidance on clauses that seek to limit or exclude liability, consult the following Practice Notes: Misrepresentations—excluding and limiting liability for them Contractual estoppel Contractual estoppel—illustrative cases Disclaimers of liability for negligent misstatement A disclaimer will be effective where the statement is coupled with wording that plainly signals an intention to disclaim. In Hedley Byrne v Heller, the defendants said their advice was provided 'without responsibility', which the court accepted as excluding what would otherwise have been negligence liability. The wording must be explicit and unequivocal; the court will not infer a disclaimer (see Box v Midland Bank [1981] 1 Lloyd’s Rep 434, not reported by Lexis...
Across numerous jurisdictions, including the United Kingdom, borrowers may, in certain situations, be required to deduct a portion of interest owed to a lender and pay the deducted sum to the tax authorities. This Practice Note outlines when UK withholding tax applies to lending and highlights the principal exemptions. For fuller detail on the handling of withholding tax in facility agreements, see Practice Note: Tax considerations on a loan agreement—the tax gross up clause and Reviewing a loan with a view to alleviating UK withholding tax risk—checklist. What is withholding tax? Withholding tax is a means of collecting tax at source from the person making the payment, rather than from the recipient. It offers an efficient collection mechanism for authorities such as His Majesty's Revenue and Customs ( HMRC), as the payer carries the administrative burden of: deducting the correct amount of income tax from the...
Many of the standard conditions precedent for a typical syndicated loan facility will likewise apply to a project finance transaction. For information on those conditions precedent, see Practice Note: Conditions precedent. This Practice Note addresses further conditions precedent that may arise in a project finance transaction. Purpose and timing of conditions precedent in project finance Conditions precedent are included in finance documents for the benefit of the lenders. They give lenders grounds to decline lending if they are not sufficiently comfortable with the matters on which their credit appraisal is based. They also verify core information about: the borrower and any other obligors (eg their capacity to enter into the transaction documents and their financial standing), and the transaction (eg adequacy of security and receipt of necessary licences and approvals) In a project finance transaction, lenders also seek specific comfort on the...
The difference between bilateral and syndicated loans A bilateral loan features a borrower and a single lender, with, on occasion, other companies within the borrower’s group acting as guarantors and/or providers of security to support the borrowing. Where one lender is unwilling or unable to supply the whole sum the borrower requires, the borrower may turn to two or more lenders to cover its funding needs in order to meet its financing objectives. In a syndicated arrangement, multiple lenders agree to provide finance to a borrower on harmonised terms, all set out in a single facility agreement executed by every party to the transaction. Types of syndication There are three main types of syndicated loans: underwritten deals, in which the arrangers promise to fund the entire commitment and subsequently seek to syndicate the loan to other lenders. If the loan is not fully...
Once hailed as a demonstration of the English knack for bending the most rarefied ideas to commercial ends, floating charges are now widespread and, in practice, almost indispensable to finance deals. This Practice Note flags the key distinctions between the laws of Scotland and England concerning floating charges, looking in particular at their make-up, the rules on registration, and the mechanisms for enforcement in each jurisdiction. It concentrates on the status of a ‘qualifying floating charge’ as that expression is defined in the Insolvency Act 1986 ( IA 1986), and how the concept operates across both Scotland and England. The floating charge Although fixed securities give a lender priority ahead of floating charge holders and unsecured creditors, they are confined to the identified asset over which they are granted and limit the borrower’s freedom to deal with that asset without the fixed security holder’s...
STOP PRESS: ECCTA 2023 brings in identity verification obligations for everyone submitting filings with Companies House. These rules are expected to become mandatory in November 2026. See the Changes under ECCTA 2023 section below for additional detail and timing. STOP PRESS: On 16 March 2026, Companies House announced that on Friday 13 March it became aware of a security issue whereby a signed-in Web Filing user could, after carrying out a particular sequence of steps within the portal, potentially view and amend certain aspects of another company’s information without that company’s consent, including specific fields and entries. For the avoidance of doubt, Companies House has confirmed that no already-filed documents, including accounts or confirmation statements, could have been changed. Nevertheless, there is a risk that some personal data might have been accessed and that unauthorised filings may have been submitted. Although information is currently limited, this could, for...
What does this Practice Note cover? This Practice Note offers an overview of the clearing of over-the-counter ( OTC) derivative contracts under UK EMIR. It covers: what clearing OTC derivative contracts entails the reasons for clearing OTC derivatives the types of OTC derivative contracts subject to the mandatory clearing obligation who is obliged to clear who is exempt from the clearing duty how clearing works under the principal and agency models the documentation required for a clearing relationship the concept and mechanics of indirect clearing What is OTC derivative clearing? When an OTC derivative trade between two counterparties is centrally cleared, a central counterparty ( CCP) positions itself between the original parties to the transaction. Once the parties have agreed the OTC trade, the CCP becomes the buyer to every seller and the seller to every buyer....
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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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