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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 sets out an overview of the principal legal papers used to bring a loan portfolio disposal to completion and highlights the usual negotiating stances taken by sellers and buyers. For a primer on loan portfolio disposals and a sample pathway these transactions often follow, see Practice Note: Introductory guide to loan portfolio sales. For an outline of some of the core matters that can arise on loan portfolio sales, see Practice Note: Loan portfolio sales—key issues. The market’s approach to documentation for portfolio disposals is not entirely uniform; however, over the last decade a number of recurring features and conventions have developed, which are considered in this Practice Note. Key documents used in portfolio sales The documents most frequently encountered in loan portfolio sales include: Confidentiality agreements Sale and purchase agreement Disclosure letter ...
STOP PRESS: The Loan Market Association ( LMA) has issued revised editions of the standard terms and conditions for Par and Distressed Trade Transactions, the complete suite of Funded Participation and Risk Participation Agreements, and the Secondary Debt Trading Documentation User Guide, effective from 17 March 2026. The changes include the removal of LIBOR references, updates to IBOR rate definitions and the Target2 definition, and refreshed ERISA representations incorporating additional exemptions from the prohibited transaction rules under ERISA and the US Internal Revenue Code. The refreshed materials are available exclusively to LMA members via the LMA’s Documentation Hub. In the London market, secondary debt trades are commonly documented using the LMA’s recommended form documents. The LMA’s secondary debt trading suite was developed to standardise and simplify the sale of loan assets and to establish a consistent settlement process. The use of common...
The timeline below is illustrative—often highly ambitious—and draws together the steps usually followed in a standard secondary debt trade; in practice, it is rarely met in full. A failure to keep to this timetable does not constitute a contractual default. The approach for par debt and distressed debt is broadly the same, though the table flags certain specific differences. This timetable assumes the parties will use the Loan Market Association ( LMA) secondary debt trading suite to document their transaction. For more on the paperwork used in secondary debt trades, see Practice Note: Overview of the key documentation in a typical secondary debt trade. Timeline of a typical secondary debt trade T = Trade date. All references to days are to business days. Pre-trade date To minimise delay between the trade date and the settlement date: The buyer and seller determine their respective...
This Practice Note sets out a comparison of the principal terms of the Loan Market Association ( LMA) intercreditor agreement for leveraged acquisition finance transactions (senior/mezzanine) (the LMA Leveraged Intercreditor Agreement), the LMA intercreditor agreement for real estate finance transactions (senior/mezzanine) where the mezzanine debt is structurally subordinated (the LMA REF Intercreditor Agreement— Structural Subordination), and the LMA intercreditor agreement for real estate finance transactions (senior/mezzanine) where the mezzanine debt is not structurally subordinated but is instead contractually subordinated within the intercreditor agreement only (the LMA REF Intercreditor Agreement— Contractual Subordination only) (together, the Intercreditor Agreements). For further information on the principles of subordination and the main provisions commonly found in intercreditor agreements, see Practice Notes: Subordination and Intercreditor agreement—key provisions. The LMA leveraged and REF intercreditor agreements The LMA Leveraged Intercreditor Agreement The LMA Leveraged Intercreditor Agreement was the first of the LMA’s...
This Practice Note delivers practical guidance on the valid execution of simple contracts and deeds by liquidators. A liquidation may be: insolvent (where a company cannot meet its debts or its liabilities exceed its assets), or solvent It may be initiated by court order (compulsory liquidation) or out of court (voluntary liquidation). For information on each type, see: Compulsory liquidation—overview Creditors' voluntary liquidation ( CVL)—overview Members' voluntary liquidation ( MVL)—overview Quick view The outline below summarises execution formalities relevant to liquidators and indicates where corresponding precedent execution clauses are located. For fuller detail, navigate to the document type via the links in the first column. Simple contracts: May be made by the company (see section 43(1)(a) of the Companies Act 2006 ( CA 2006)). Under the...
What does this Practice Note cover? The International Swaps and Derivatives Association, Inc. ( ISDA) is the trade body for actors in the derivatives market. It has created standard forms for derivatives, and these are used to record the vast majority of over‑the‑counter ( OTC) derivative dealings. This Practice Note sets out the principal ISDA papers used in a typical OTC derivatives transaction, the overall structure, and how each piece connects to the others. The key documents are: master agreement schedule credit support document (only where the parties require collateral or security to be provided) confirmation Documentation framework ISDA ISDA is a global association representing participants in the international, privately negotiated OTC derivatives marketplace. Its members include derivatives dealers, corporates, law firms, and others, and are listed on the ISDA website. ISDA has published standardised derivatives...
What does this Practice Note cover? This Practice Note considers: typical dispute categories arising from derivative contracts key case law connected to those categories practical pointers for practitioners when drafting derivative contracts to head off later disputes processes available to resolve disagreements over derivatives contracts The nature, principal types and main applications of financial derivatives are outlined in Practice Notes: The nature of financial derivatives and Types of derivatives. Derivative contracts often generate disputes between the parties who enter into them. Common categories of derivative disputes Derivatives may trigger a variety of disagreements. As with any situation where parties negotiate, conclude and perform (or fail to perform) a contract, claims may concern: negligent misstatement, deceit or breach of section 2 of the Misrepresentation Act 1967 ( MA 1967) regarding false or misleading statements made before the contract was entered into (for more...
Section 245 of the Insolvency Act 1986 ( IA 1986) Under section 245 of the Insolvency Act 1986, liquidators and administrators may set aside certain floating charges where: the charge was granted within the relevant time; in specified situations, the company was insolvent when it was made, or became insolvent because of the transaction giving rise to it; all or part of the consideration for creating the charge was not supplied at the same time as, or after, the charge was created. The provision is designed to stop creditors gaining an unfair edge over others, such as trade creditors, when the company’s capacity to meet its debts is uncertain. It is akin to a preference claim, but what is unwound is the security over the indebtedness, rather than the repayment itself. In Re Comet Group Ltd (in...
What does this Practice Note cover? This Practice Note introduces high yield bonds. It addresses: the types of investors in these securities, such as institutional investors and funds the motivations for investing, including benefits versus loans (for example, the potential for higher returns) the issuers of these instruments, typically corporates with sub-investment grade credit ratings an outline of the high yield bond market, covering its size, principal participants and usual features What are high yield bonds? Bonds are capital markets instruments that constitute a form of debt security. For more on capital markets and bond issues, see Practice Note: Key features of the debt capital markets. High yield bonds—also known as junk bonds or speculative grade bonds—generally provide investors with higher rates of return than other corporate bonds because they are considered riskier investments. High yield bonds are typically rated below...
For a fuller analysis of the regulation, consenting and incentivisation of the net zero energy transition under the laws of England and Wales, see also: Collinson and Hockman on Energy Law: Regulating, Consenting and Incentivising the Energy Transition. That textbook offers comprehensive treatment of the topics addressed in this Practice Note, with in‑depth discussion of the same issues. What is the background to the Cf D regime? Contracts for Difference sit at the heart of the government’s Electricity Market Reform ( EMR) programme, introduced in 2013. EMR was devised by the UK government to encourage investment in secure capacity and affordable, low‑carbon electricity generation. The principal mechanisms enacted through the EMR reforms include: the Contracts for Difference ( Cf D) regime, the focus of this Practice Note, structured as a contract that grants owners of new build low‑carbon generation projects a long‑term, stable revenue stream in...
Types of security Under English law, four principal forms of security exist: Mortgage Charge Pledge Lien This Practice Note sets out: the nature of a charge (as contrasted with other security interests) the distinction between a fixed charge and a floating charge the asset classes commonly subjected to fixed charges perfection of fixed charges priority issues when taking a fixed charge The Note mainly centres on fixed charges. Practice Note: Floating charges offers fuller detail on floating charges, including factors to weigh when taking a floating charge, and matters of crystallisation and re-characterisation. Special rules govern agricultural charges; for details, see Practice Note: Agricultural charges under the Agricultural Credits Act 1928. Key takeaways Nature of a charge – it grants the secured creditor an equitable proprietary interest without passing title or possession, setting it apart from...
FORTHCOMING DEVELOPMENT : The Financial Services and Markets Act 2023 ( FSMA 2023) delivers the outcomes of the Future Regulatory Framework Review by revoking retained EU financial services law listed in FSMA 2023, Sch 1 and replacing it with regulation tailored to the UK. Among the instruments named in FSMA 2023, Sch 1 are the Financial Collateral Arrangements ( No 2) Regulations 2003, SI 2003/3226 ( Schedule 1, Part 2, Subordinate legislation), and the EC Financial Collateral Directive, Directive 2002/47/ EC ( Schedule 1, Part 3, EU tertiary legislation). The revocation of these two measures is not yet in effect. It is expected that the repeal of retained EU financial services law will proceed over a number of years, and the nature of any successor regime for financial collateral remains unknown. For further details on FSMA 2023, see Practice Note: The Financial Services and...
Guide to executing simple contracts across jurisdictions This guide explains the requirements for signing simple contracts in a range of international jurisdictions. A table gives a quick-reference snapshot of the execution formalities for companies, individuals and partnerships in different countries. Fuller commentary for each overseas jurisdiction listed in the table appears in the sections below. For guidance on the execution of deeds in various jurisdictions, see Practice Note: Execution of deeds—jurisdictional guide. For electronic signatures, see Practice Note: E-signatures—jurisdictional guide. For the formation of contracts, see Practice Note: Contract formation—jurisdictional guide. For executing documents under Scots law, see: Execution— Scotland—overview. Please note: this is an introductory resource only, and local advice from suitably qualified legal professionals in the relevant country should be obtained where appropriate. Summary table What are the requirements for companies when executing contracts? What are the requirements for...
This Practice Note provides practical guidance on the proper execution of documents by non- Companies Act corporations This Practice Note offers practical direction on executing documents correctly for corporations outside the Companies Act. Such corporations arise under statute, like local authorities and building societies. A corporation has a legal identity distinct from its members, enabling it to enter contracts, own property, and bring or face proceedings in its own name. Here, the focus is on corporations aggregate (groups of persons) rather than corporations sole (a single office-holder). The expressions ‘body corporate’ and ‘corporation’ are broad and include entities constituted by: Statute: including building societies, co-operative or community benefit societies (formerly industrial and provident societies), and friendly societies A general Act of Parliament: such as local government authorities, corporations overseeing public services and industries, bodies with general administrative and advisory roles, and certain entities carrying out special...
What are private placements? In this note, we use the term private placements to refer to placements of debt, arranged as loans or notes; private placements of other instruments, such as shares or securitisation products, fall outside the scope of this note. A defining feature is that the debt is not offered to the general public but placed with a limited circle of private investors, who are typically institutional in nature: Pension funds Insurance companies Asset managers Consequently, issuers and transactions benefit from relief from burdensome registration and disclosure obligations that would otherwise attach to a public debt issue. For example, no registration document is required in the US under the Securities Act of 1933, and, in the European context, no prospectus needs to be issued under the relevant UK or EU prospectus...
This Practice Note sets out guidance on payment-in-kind ( PIK) facilities. It covers: the principal features of PIK facilities, including a standard transaction structure key terminology the risk profile and yield associated with PIK facilities why PIK facilities may be appealing to the sponsor, and core documentary protections for PIK finance parties Key features of a PIK facility What is a PIK facility? A ‘ PIK’ loan facility typically refers to debt where interest is capitalised throughout the term. In Europe, this debt is most often seen in the financial sponsor-backed leveraged finance market, provided to a sponsor’s portfolio business. PIK facilities—transaction structure The PIK loan is commonly advanced to a PIK Holdco within the sponsor’s portfolio group. PIK Holdco is usually the immediate holding company of the Parent. The Parent sits at the top of the part of the group that...
Practice Note This Practice Note provides a concise outline of the principal legal considerations and discussion themes typically faced in practice when financial institutions assess whether to offer receivables purchase or invoice discounting facilities, or instead to advance a loan secured against the value of receivables. There are several reasons why suppliers might opt to sell receivables (on a no recourse or limited recourse basis) rather than borrow......
There are several situations in which a guarantor, backing the obligations of one or more borrowers under a loan facility, may have its liability terminated, revoked, discharged, extinguished or reduced. The simplest outcomes arise where either: the principal fulfils the guaranteed obligation and the guarantee is discharged, or the guarantor performs its own obligations under the guarantee This Practice Note looks at: how a guarantee is brought to an end in these circumstances the benefits of entering into a deed of release in those scenarios, and the effect of insolvency clawback on a discharge achieved through the principal’s performance It should also be recognised that other events may terminate a guarantor’s liability. For example, the guarantee may cease because: the parties agree to release the guarantor—for more information, see Practice Note: Releasing guarantors by agreement between the parties the...
Defining counterparty risk It is the exposure assumed when one enters into derivative agreements with a specified party. Such arrangements can give rise to several forms of risk, notably reputational and legal, yet the dominant concern is credit risk. That is the possibility that the counterparty does not honour obligations as they fall due. Reputational issues can be addressed at the outset of discussions by deciding whether to trade with that party, while legal risk can likewise be managed through specialist legal advice and detailed negotiated terms. By contrast, credit exposure persists for the full duration of the transaction or deal and therefore demands ongoing, proactive surveillance and the capacity to revisit transactions with that counterparty if the risk is judged to have altered in a material way. Measuring counterparty risk The creditworthiness of a derivative counterparty can shift over the term of the...
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When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
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