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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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What is clearing of derivatives? Clearing is the mechanism that removes the usual risk that a party to a derivatives transaction will fail to perform. The principal participants are: a financial institution called a clearing house, a central counterparty or CCP; and other financial institutions, typically banks or brokers, that enter a clearing agreement with the clearing house—these are the clearing members of the clearing house, also referred to as clearing firms. In cleared transactions: all trades are placed by clearing members, either for their own books or on behalf of their clients; and the clearing house inserts itself between the member firms to the trade, becoming counterparty to every transaction—so each side bears the clearing house’s risk rather than the other party’s risk. The manner in which the clearing house is inserted between the clearing members depends on whether it uses: the principal model—here, Clearing Member A and Clearing Member B enter into a...
ARCHIVED: This Practice Note has been archived and is not maintained. A major overhaul of the UK listing regime took effect on 29 July 2024, removing the premium and standard listing segments and creating a single category for equity shares in commercial companies. This commercial companies category is strongly disclosure‑based and sits alongside other listing categories, such as: Shell companies Secondary listing Closed ended investment fund The UK Listing Rules sourcebook was brought in to implement these reforms, and the previous Listing Rules sourcebook has been revoked. For more detail, see Practice Note: Reform of the UK listing regime—fundamentals. That fundamentals note sets out the regime as it applied before 29 July 2024 and is retained for reference. This document explains class 1 transactions carried out by companies that formerly held a premium listing under the pre‑29 July 2024 regime. The prior Listing Rules have now...
This Practice Note charts the financial services carve-outs from the moratorium provisions and the restrictions on ipso facto clauses introduced by the Corporate Insolvency and Governance Act 2020 ( CIGA 2020) into the Insolvency Act 1986 ( IA 1986). For general information on CIGA 2020 and links to further materials, see News Analysis: Corporate Insolvency and Governance Act 2020. Moratorium CIGA 2020 inserts a new Part A1 into IA 1986, establishing a fresh insolvency process under which directors of insolvent companies, or companies likely to become insolvent, may obtain a 20 business day moratorium period. The purpose is in particular to give viable businesses time and breathing space in order to restructure or to seek new investment free from creditor action. An insolvency practitioner serves as the ‘monitor’, overseeing the moratorium, while directors remain in control of the company’s day-to-day running of the business on a...
ARCHIVED: This Practice Note is archived and no longer maintained. For the 2020 iteration of the rule, refer to: Incoterms® 2020 Rules— CIF Cost insurance and freight. The ICC publications are reproduced here with the permission of ICC Publishing SA. These and other ICC publications are available from ICC Publishing SA, 33-43 avenue du Président Wilson, 75116 Paris, France and from ICC United Kingdom, 1st Floor, 1-3 Staple Inn London, WC1V 7QH, United Kingdom, and www.iccwbo.org. Incoterms® 2010 were superseded by Incoterms® 2020 with effect from 1 January 2020. For the CIF Incoterm in force from 1 January 2020, see Practice Note: Incoterms® 2020 Rules— CIF Cost insurance and freight. CIF (insert named port of destination) Incoterms® 2010 Guidance note This rule applies only to sea carriage or inland waterway transport. Under ‘ Cost, Insurance and Freight’, the seller delivers the goods on board the...
A charity might engage in a construction project: to advance its charitable aims (for example, the delivery of social housing) to obtain office space or other premises that support its main charitable purposes, or as an investment prospect General issues on construction projects Anyone procuring a construction project should be aware of the following overarching and relevant matters: the distinct responsibilities and obligations of the developer, professional advisers, contractors, sub-contractors and suppliers the requirement for collateral warranties from, or reliance on rights under, the Contracts ( Rights of Third Parties) Act 1999 in respect of key members of the professional and construction teams the various alternative procurement routes the range and suite of standard-form construction contracts and appointments, and the appropriate, typical amendments applied to them the function of professional indemnity insurance,...
What does this Practice Note cover? This Practice Note sets out how the three settlement approaches—auction settlement, cash settlement and physical settlement—work within a credit derivative transaction. It also outlines a fallback settlement mechanism and explains why it might be adopted and the circumstances in which it is used in practice. What are the settlement methods in credit derivative transactions? After a credit derivative transaction has been triggered, the parties will wish to complete settlement so that each receives any sums due to it. The parties may choose which settlement method will govern that transaction from the following options: auction settlement cash settlement, or physical settlement The 2014 ISDA Credit Derivative Definitions (the 2014 Definitions) provide for settlement once the conditions to settlement have been met. For additional detail, see Practice Note: Triggering and settling credit derivatives. Since 2009, auction settlement has become the...
Step-by-step guide A protection buyer (party A) and a protection seller (party B) execute an ISDA Master Agreement, the accompanying Schedule, and a confirmation document with one another to document a CDS contract. The contract explicitly names a specific reference entity. Within the confirmation, both parties state that, if a credit event occurs for that reference entity, the deal will be cash settled. Party A undertakes to pay party B a fixed fee or premium—this may......
Over recent years, a broader mix of organisations has looked to tap the capital markets. Where once capital markets activity was largely the domain of banks, financial institutions and commercial companies, a wider array of entities has begun to participate in this arena. The rapidly expanding range and variety of innovative financial instruments demonstrates that effective cooperation across the public, private and voluntary spheres is achievable when they join forces on capital markets transactions and structure deals together in practice. This shift continues to gather pace. Social Impact Bonds ( SIBs) and Development Impact Bonds ( DIBs) Tackling persistent social challenges has long troubled both governments and the charitable sector alike. Deep-seated problems—such as children in care, homelessness, barriers to education, youth employment and long-term health conditions—often arise where the state is constrained in what it can do, or has previously struggled to respond...
This Practice Note discusses the meaning of capital call facilities, ' NAV' or asset-backed facilities, and hybrid facilities the commercial applications of capital call facilities the due diligence that lenders will undertake the standard security package typically required by lenders the principal terms of capital call facilities ' Capital call facilities' and other types of fund finance A capital call facility, also known as a subscription line facility, is financing extended by a lender to a fund and is ordinarily collateralised by investors’ undrawn commitments. Accordingly, funds tend to obtain these lines early in their life cycle, when unfunded commitments are at their highest yet the fund holds few or no investments that can be charged in favour of lenders. Nevertheless, particularly where recallable capital commitments persist (see below), capital call facilities can remain beneficial well into the fund’s...
This Practice Note sets out the principal stages of a buy-out, spanning the initiation of the sales process through to the syndication of the facilities. Commencing the sale process Once a seller chooses to dispose of a business, it commences the process by drafting an information memorandum ( IM) presenting comprehensive detail on the target company’s activities. This can include preparing a business plan in collaboration with management. The IM is then circulated to prospective purchasers. Before submitting an offer, a would-be buyer will typically: conduct preliminary due diligence on the target arrange debt finance to fund the acquisition secure the support of the current management team, or recruit and install a new team Where the sale proceeds by way of a management buy-out ( MBO), the management team will approach the seller with its...
Over the past twenty years, build to rent offerings have expanded across the UK, most visibly in large metropolitan centres such as London. Professionally operated and held by institutional investors, its rise reflects comparable developments in countries including Germany and the USA. It is now regarded as a separate asset class within the private rented sector and is defined in the National Planning Policy Framework glossary, simplifying its consideration within the planning system. This Practice Note sets out: the nature of build to rent transactions and how they diverge from conventional residential development finance the typical financing structures used for build to rent the principal points to address when documenting build to rent transactions the applicable regulatory and planning matters the key legislation influencing the sector What is build to rent? ‘ Build to rent’ describes schemes where homes are delivered specifically for the long-term rental market. In real estate...
Loan market and developments This section offers a concise overview of the present condition of the loan markets in this jurisdiction and highlights any significant recent developments. The British Virgin Islands ( BVI) does not maintain a domestic commercial lending market; financing relevant to this guide is ordinarily extended by lenders outside the BVI. In practice, a BVI borrower sources funding from major financial centres worldwide and typically draws and operates its facilities beyond the territory. At present, most lending seen in the jurisdiction originates from European, Asian and North American institutions. Historically, balance sheet lending and asset finance have been the dominant segments for the BVI, while shifting global conditions have also driven a notable rise in restructurings and work-outs......
An agent is an individual who carries out services for, or in the name of, a commercial organisation. Using agents principally creates exposure under section 7 of the Bribery Act 2010 ( BA 2010) for a company’s failure to prevent bribery. Commercial organisations are: bodies incorporated under the law of any part of the UK that conduct business anywhere any other corporate bodies that run a business, or part of a business, in any part of the UK partnerships established in the UK that operate a business anywhere, or partnerships formed anywhere that conduct a business, or part of it, in the UK Business covers a trade or a profession. How an agent may put a commercial organisation at risk An agent is a person who provides services for, or represents, a commercial organisation. Agents are therefore treated as...
ARCHIVED This Practice Note is archived and not kept up to date. Through the implementation/transitional phase, lending lawyers largely carried on as normal (see Practice Note: Brexit—impact on finance transactions [ Archived]— Impact of Brexit on financial services legislation), but from IP completion day the position alters as outlined below... How does Brexit impact B& F? This Practice Note outlines what IP completion day means for each affected topic listed below and signposts fuller materials where you can explore the detail... UK- EU Trade and Co-operation Agreement What is the impact of the UK- EU Trade and Co-operation Agreement? On 24 December 2020, the European Commission and the UK government confirmed agreement in principle on the legal framework for the future UK- EU relationship. UK and EU leaders rapidly endorsed it; it was signed on 30 December 2020 and then passed by the UK Parliament. That said, it will not take full...
Banking & Finance news— Brexit collection [ Archived] Banking & Finance Brexit News Banking & Finance has shared updates on a range of Brexit-related matters, outlined below. 27 July 2021 — UK accession to Lugano Convention—is the door now closed? In June 2021, Switzerland’s Federal Department of Foreign Affairs received a letter from the European Commission confirming it would not consent to the UK’s application to accede to the 2007 Lugano Convention. Angharad Parry, a barrister at Twenty Essex, explores the implications of these latest developments. 27 July 2021 — A look at UK’s divergence priorities after Brexit Post- Brexit, the UK has targeted regulatory divergence at sectors where it holds a competitive edge. This is especially true in financial services, with the...
Bond trustees’ discretionary powers and bondholders’ consent This Practice Note outlines the scope of a bond trustee’s discretion, including circumstances where they may alter bond terms or waive breaches without first obtaining bondholder approval. It also explains the rationale for convening bondholder meetings, how such meetings are arranged and conducted, and the various forms of bondholder resolution. Bond trustees’ discretionary powers Under the trust deed, bond trustees are vested with a range of discretionary authorities. These include power to amend the bond terms without bondholder consent where, in the trustee’s judgement and subject to specified exceptions, the proposed changes are: not materially prejudicial to the interests of bondholders to remedy a manifest or proven error formal, minor or technical in character Nevertheless, trustees rarely exercise this power where the amendments are material. For proposals that are substantive or significant, the trustee will usually seek...
The ‘ Blue Economy’ The Blue Economy comprises economic activity that both depends upon, or exerts an effect on, coastal and marine resources. As set out by the International Finance Corporation ( IFC), the blue (or ocean) economy is projected to double in size to US$3tn by 2039, employing 40 million people worldwide when compared with 2010. The financial sector will be central to this trajectory overall and, although the space is still relatively new, it indeed appears that blue bonds in particular are set to play a significant role in realising a sustainable blue economy. This Practice Note considers: what blue bonds are blue bond issuances in the market the steps involved in issuing a blue bond the prospects for blue bonds The potential, and rising prominence, of blue bonds is illustrated by the publication of Bonds to Finance the Sustainable Blue Economy (the Guidance), the product of a...
Blockchain Blockchain has surged into mainstream awareness, propelled by the meteoric rise of cryptocurrencies and a buoyant global fintech industry, with regulators across the world running or completing numerous consultations and discussions. Though blockchain and related technologies remain comparatively young, substantial investment has been directed at unlocking efficiencies and capturing the novel business models they are expected to enable. To date, attention has largely centred on technical and commercial considerations. However, for blockchain to realise its full potential it must navigate both new and existing legal and regulatory landscapes in which it will operate. The breadth of possible use cases, together with the current stage of evolution of this technology, means this Practice Note is, by necessity, a roadmap for understanding the key legal and regulatory issues that typically arise in connection with blockchain technology, rather than a set of definitive answers. The precise...
This Practice Note sets out the principal funding routes for biomass projects and reviews the standard project finance architecture and documentation in a biomass context. As external lenders chiefly focus on a project’s ‘bankability’, it also identifies the key risks they should assess when backing a biomass scheme. Introduction What is biomass? Biomass is a broad term for organic matter sourced from plants or plant-derived materials used to produce heat, electricity or transport fuel. More specifically, Forest Research—the research agency of the Forestry Commission ( FC) and Great Britain’s leading organisation for forestry and tree-related research—defines biomass as biological material from living or recently living organisms, such as wood, crops and the biogenic components of municipal, human and animal waste. For further information on biomass technologies, see Practice Note: Waste to...
Biomass fuel Biomass describes organic matter from plants or plant-derived sources used to generate heat, electricity or transport fuels, and is typically viewed as having a lower carbon footprint than fossil fuels. As a fuel for heat and power projects it can comprise, for example: waste and clean/recycled wood, such as forestry residues, landscaping arisings and wood chips (waste wood is categorised by the Wood Recyclers Association as: Grade A – pre-consumer waste wood and wood packaging (clean/untreated) Grade B – industrial waste wood (treated/non-hazardous) Grade C – municipal waste wood (treated/non-hazardous) Grade D – hazardous waste wood ) dedicated energy crops cultivated for conversion to energy, including maize, grass and...
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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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