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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 sits within a wider suite on airline insolvency; for further detail, see: Guide to airline insolvency—introduction Guide to airline insolvency—insolvency proceedings, receivership, restructuring plans and schemes of arrangement Cross-border issues If an airline enters insolvency, the appointed insolvency office-holder, or a lessor or financier, may need to pursue asset recovery in numerous jurisdictions, influenced by the airline’s scale and global reach. For office-holders, consideration should be given to the potential application of the Cape Town Convention (see Practice Note: Guide to airline insolvency—insolvency proceedings, receivership, restructuring plans and schemes of arrangement). Where aircraft and other assets are situated in jurisdictions that have implemented the UNCITRAL Model Law on Cross- Border Insolvency, the office-holder may seek recognition and assistance in those places (see generally: UNCITRAL Model Law and Cross- Border Insolvency Regulations 2006 (...
Aviation finance is well suited to tax leasing across multiple jurisdictions. Such leases are generally used to defer tax. From a tax viewpoint, they can be beneficial for equity investors who have taxable profits arising from their ordinary business activities. These arrangements can be executed in jurisdictions including Japan, Germany and France. The primary risk with tax leasing emerges if the transaction ends early, as this may prevent equity investors from deferring their tax exposure to the extent and for the period they had planned. What is a tax lease? Most tax leases operate as tax deferral structures. They occur when certain entities (equity investors) enter a transaction with the specific aim of creating an immediate tax loss, which they can offset against taxable profits from their normal course of business. At a later point, the transaction is expected to generate profits and, at that stage, the...
When a lessor places an aircraft on lease, it is concerned to make sure the aircraft is run in a way that does not unduly undermine the market value of the aircraft, and therefore its value as quasi-security, over the term of the lease. As a bare minimum, the lessee will be asked to give an undertaking to the lessor that it will operate the aircraft as follows: in full accordance with all applicable laws (which includes the laws of the state in which the aircraft is registered as well as those of any jurisdictions in which the aircraft is physically located) in accordance with all permits or licences which are required by the lessee to operate the aircraft in question in a way which will not invalidate any warranties granted by a manufacturer in respect of the aircraft in accordance with the...
This Practice Note explores how Artificial Intelligence ( AI) is being applied in debt capital markets ( DCM) transactions, emphasising related risks, legal issues and the regulatory landscape. It highlights emerging AI technologies, considers their potential influence on DCM, and sets out strategic points for DCM practitioners, with particular attention to the associated risks, legal considerations and the prevailing regulatory framework... AI applications in debt capital markets ( DCM) AI in underwriting and issuance Issuing debt securities is the method by which an organisation offers fresh instruments, such as bonds, to investors to obtain funding through borrowing (debt). The workflow has multiple stages: preparing an extensive suite of legal documents, including a prospectus, appointing an underwriter, and marketing the securities to prospective investors. Within DCM, underwriting refers to a financial institution's commitment to purchase any securities that cannot be sold to, or paid for by,...
In acquisition finance deals, the sponsor and management usually negotiate the equity papers, while lenders’ counsel are entitled to review drafts and provide comments on them where necessary. Lenders and their lawyers scrutinise particular provisions in the equity suite to confirm that the lenders’ interests are fully protected. Accordingly, lender approval of both the form and substance of those documents will typically be set as a condition precedent to the funding of the transaction. The main equity documents in an acquisition finance transaction are: the articles of association for the group’s top company (topco) in the structure the shareholders’ agreement, also called the investment agreement or the subscription and shareholders’ agreement service agreements and bonus scheme papers loan note instrument and the loan notes, and downstream loan agreement(s) This note makes a number of generally applicable observations before examining each document in turn. See Practice Note:...
This glossary sets out many of the expressions commonly used in the leveraged finance market. Words appearing in the definitions in bold are defined elsewhere in this glossary. For further banking terminology, please refer to the main Banking & Finance Glossary... Acquisition finance glossary— A Acceleration Acceleration is the formal action taken by the agent, on the instructions of the majority lenders, following an event of default, such as making a demand for early repayment of the loan. See Practice Note: Accelerating a loan for more information... Accordion feature/accordion facility An accordion, also called an incremental debt feature, is a mechanism in the facilities agreement that, provided specified conditions are satisfied (for example, pro forma compliance with a leverage test), permits those lenders under the facilities agreement who wish to do so to advance additional debt. The terms for that extra debt are typically captured in an...
What does this guide cover? This overview sets out the essentials of acquisition finance and signposts our Banking & Finance materials for readers with little or no background in the subject. It explains the meaning of acquisition finance, core terms, characteristics, the main participants and documentation, and the principal tasks undertaken by acquisition finance lawyers. For a fuller primer, refer to Practice Note: Introductory guide to acquisition finance. For a broader orientation to our banking and finance content, see: Banking & Finance—new starter guide. What is meant by acquisition finance? A buyer of a business commonly combines its own capital with third-party finance (for example, loans) to complete the deal. Put simply, acquisition finance refers to the debt portion of the funding used to purchase a company. It is commonly linked with leveraged buy-outs, and acquisition finance and leveraged finance are frequently treated as...
This Practice Note outlines the UK’s financial and trade sanctions framework created by the Sanctions and Anti- Money Laundering Act 2018 ( SAMLA 2018). Introduced to provide a resilient domestic system after Brexit, it allows the UK to impose a comprehensive range of sanctions to meet UN sanctions obligations, including: financial sanctions director disqualification sanctions immigration sanctions trade sanctions aircraft sanctions shipping sanctions other sanctions What is the background to the UK’s domestic sanctions regime? ‘ Sanctions’ describes a set of tools intended to create adverse effects for foreign states or designated persons (individuals or corporate entities) for specified aims—most often foreign policy, and sometimes counter-terrorism. These measures place prohibitions and obligations not only on the targets themselves, but also on third parties who trade with, or otherwise deal with, them. For detailed guidance, see Practice Note:...
Global consciousness of sustainability and environmental, social and governance ( ESG) matters has intensified through co-ordinated international efforts to deliver the UN Sustainable Development Goals and honour Paris Agreement commitments. The worldwide response to the coronavirus ( COVID-19) pandemic underscored the need to bolster the resilience of societies and the functioning of our economies, bringing sustainability and social priorities to the forefront for governments and regulators. The 26th UN Climate Change Conference of the Parties ( COP26) in Glasgow in 2021 further anchored climate change and sustainable finance as a core agenda point for financial market participants. In parallel, the 15th meeting of the Conference of the Parties to the Convention on Biological Diversity ( COP15) sharpened attention on mobilising sustainable finance to address biodiversity loss. Transitioning to a low-carbon economy by 2050 is estimated to require at least US$110trn in funding...
Banking & Finance—key dates and future developments tracker: 2025 [ Archived] ARCHIVED: This Banking & Finance key dates and future developments tracker is archived and no longer maintained. It is designed to assist banking and finance lawyers in keeping tabs on upcoming developments, key dates and horizon scanning. Developments from other Practice Areas considered relevant to banking and finance lawyers are captured within this tracker, noting that some of those Practice Areas also issue their own trackers. Please be aware that this tracker does not attempt to cover every consultation connected to financial services regulation (including derivatives and capital markets regulation). Rather, it draws out those matters the Banking & Finance team consider most relevant to banking and finance practitioners and facility documentation. For comprehensive coverage of UK and European Union ( EU) financial services regulatory developments, see Practice Note: Trackers and...
Banking & Finance—key dates and future developments tracker: 2024 [ Archived] This Banking & Finance tracker of key dates and forthcoming developments is designed to help banking and finance solicitors monitor upcoming milestones, timelines and undertake horizon scanning activities as appropriate. It also captures future changes from other Practice Areas where they are judged pertinent for banking and finance practitioners. Several of those Practice Areas publish separate trackers as well of their own. Note that it does not attempt to include every consultation on financial services regulation (such as derivatives and capital markets). Rather, it flags the consultations the Banking & Finance team deem most relevant for practitioners and facility documentation also. For fuller coverage of UK and European Union ( EU) financial services regulatory developments, refer to Practice Note: Trackers and...
Banking & Finance—key dates and future developments tracker: 2020 [ Archived] This Banking & Finance key dates and future developments tracker serves as a tool for monitoring forthcoming milestones, timelines and horizon-scanning items for banking and finance lawyers. It also captures upcoming matters from other practice areas where they are pertinent to banking and finance specialists, though some of those fields maintain their own dedicated trackers. Note that the tracker does not attempt to list every consultation on financial services regulation (such as those concerning derivatives or capital markets). Rather, it spotlights the consultations the Banking & Finance team deem most significant for practitioners and for facility documentation. For a fuller picture of European Union ( EU) and US financial services regulatory progress, refer to Practice Note: Trackers and Timelines—financial services. That resource provides a complete catalogue of timelines produced by the...
Banking & Finance—key dates and future developments tracker: 2019 [ Archived] This Banking & Finance tracker of key dates and forthcoming developments is designed to help track imminent developments, dates and horizon scanning for banking and finance lawyers. It also captures forthcoming changes from other practice areas where these are judged relevant to banking and finance lawyers. Note that other practice areas may publish their own trackers. This tracker does not attempt to include every consultation on financial services regulation (covering, for example, derivatives and capital markets regulation). Rather, it selects those items the Banking & Finance team view as most pertinent for banking and finance practitioners and for facility documentation. For fuller coverage of European Union ( EU) and US financial services regulatory developments, refer to Practice Note: Trackers and Timelines—financial services, which lists all timelines issued by the Financial Services team. Those...
Banking & Finance—key dates and future developments tracker: 2018 [ Archived] This Banking & Finance key dates and future developments tracker is designed to help banking and finance lawyers monitor forthcoming milestones, dates and undertake horizon scanning. It also captures future changes from other practice areas where these are relevant to banking and finance practitioners, although some of those teams issue their own trackers. Please note, this tracker does not include every consultation on financial services regulation (including derivatives and capital markets). Instead, it spotlights those the Banking & Finance team regard as most pertinent to banking and finance practitioners and to facility documentation. For comprehensive coverage of European Union ( EU) and US financial services regulatory developments, see Practice Note: Trackers and Timelines—financial services for a complete list of all timelines from the Financial Services team. Those timelines follow, in depth,...
Banking & Finance—key dates and future developments tracker: 2017 [ Archived] This Banking & Finance key dates and future developments tracker is designed to help track forthcoming developments, dates and horizon scanning for banking and finance lawyers. Developments from other practice areas regarded as relevant to banking and finance lawyers are also included, although some practice areas publish their own trackers. Please note, this tracker does not capture every consultation on financial services regulation (including derivatives and capital markets regulation). Instead, it highlights those matters the Banking & Finance team consider most pertinent for banking and finance practitioners and facility documentation. For comprehensive coverage of European Union ( EU) and US financial services regulatory developments, see Practice Note: Trackers and Timelines—financial services for a complete list of all timelines compiled by the Financial Services team. Those timelines monitor, in detail,...
Banking & Finance—key dates and future developments: 2016 [ Archived] Please note we are not covering every consultation; for details not captured in this Practice Note, please see our Regulatory timelines and trackers in the key resources section of the homepage. January 2016 Date | Subject matter | Key development 1 January — Solvency II — The Solvency II framework takes effect—see the Europa website. 1 January — FSCS limits — The Financial Services Compensation Scheme ( FSCS), which protects savers by guaranteeing deposits in savings accounts, will be cut from £85,000 to £75,000—see LNB News 06/07/2015 9. 1 January — The Taxation of Regulatory Capital Securities ( Amendment) Regulations 2015 — The Taxation of Regulatory Capital Securities ( Amendment) Regulations 2015 ( Amending Regulations) stipulate that Solvency II-compliant instruments issued by insurers and other financial institutions as debt are brought within income tax under the...
Undertakings—often referred to as covenants—are commitments made by both the borrower(s) and any obligors in favour of the lender (or the finance parties in a syndicated arrangement) to carry out, or refrain from, specified acts. The borrower can also promise to ensure its subsidiaries comply with these requirements. Unlike representations, undertakings endure for the entire term of the facility, and a breach will typically constitute an event of default. Following an event of default, the lender has a contractual right to accelerate the facility, ie require repayment. In practice, however, the possibility of acceleration is frequently used as leverage so that any breaches—and the business issues giving rise to them—are addressed without delay. For further detail on events of default and acceleration, see Practice Note: Events of default. Many of the standard undertakings found in a typical syndicated loan facility will also be relevant (in some...
Once a rolling stock lessor has accepted delivery of units from the manufacturer, suitable maintenance frameworks are put in place to keep the fleet in good order. The selected approach will hinge on various factors; however, for newly built rolling stock in UK passenger operations, a Train Services Agreement ( TSA) is a common choice. For further detail on maintenance options, see Practice Note: Rail finance—leasing and maintenance arrangements, which summarises the key provisions of a typical TSA. Parties to a TSA A TSA is typically a bilateral arrangement between a maintenance provider (usually the rolling stock manufacturer or one of its affiliates) and the operator. On occasion, the lessor also joins, resulting in a tripartite TSA. The core provisions of a TSA Services The maintenance provider will be required to deliver a range of services, and a TSA commonly differentiates between ‘standard services’ and...
Instead of having rolling stock looked after by a maintenance provider pursuant to a train services agreement ( TSA), an operator may decide to perform the maintenance itself, or arrange for a third party to undertake it under an existing maintenance agreement. For further details on TSAs, see Practice Note: Rail finance—train services agreements. If the Operator opts to maintain the rolling stock in-house, it may need specific technical support from the original manufacturer or from another supplier to carry out that maintenance. In those circumstances, the operator may enter into a technical support and spares supply agreement ( TSSSA). This Practice Note summarises the principal provisions of a standard TSSSA and outlines the core terms typically encountered. Parties to a TSSSA A TSSSA is generally a two-party arrangement between a supplier and the operator and, owing to the nature of the services to be...
Trustees and trust assets In numerous ways, obtaining security from trustees over trust property resembles taking security from chargors who hold the applicable asset outright. Factors that arise when securing obligations from an individual equally arise when securing obligations from individual trustees, and the same principle applies to their corporate counterparts. This Practice Note does not aim to address matters of general application when taking security; instead, it concentrates on particular points to keep in view when security is taken over trust assets. It highlights nuances specific to trust-held assets for lenders and advisers. This Practice Note addresses the following topics: the nature of trusts the powers of trustees to borrow and grant security specific issues to assess where security is taken over land regulatory aspects, and documentary considerations Please note, this Practice Note deals with issues concerning the taking of security from trustees generally and not charity...
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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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