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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 reviews a typical transaction for the sale and purchase of a second-hand commercial vessel and, in particular, addresses: the main standard forms used in the market the delivery process transfer of title and risk delivery free from encumbrances the identity of the parties the key considerations for financiers For guidance on the steps to be taken and the documentation required when acting for a buyer of a vessel to be entered on the UK register, see: Shipping finance closure—checklist. Certain aspects of the sale and purchase of superyachts differ notably from comparable deals for commercial ships; for further detail, see Practice Note: Superyacht finance—sale and purchase of superyachts. Memorandum of Agreement Many second-hand ship sales are arranged through sale and purchase brokers (widely known as ‘ S& P’ brokers) acting for their clients (their principals). Negotiations usually progress through a sequence of written...
In standard project finance deals, lenders principally look to the project’s income streams to service the debt owed. Consequently, they place tight, legally enforced controls on how the project company handles its cash. This Practice Note sets out the common ways in which lenders typically apply these controls in project finance transactions. The purpose of project accounts Project finance lenders commonly require the project company to open a series of bank accounts (the ‘project accounts’) and strictly forbid the project company from opening or maintaining any other bank accounts. For further details on undertakings in a project finance transaction, see Practice Note: Project finance—undertakings (covenants). Each project account is assigned a specific, predefined role connected to the project......
Brexit— Banking & Finance cross border content [ Archived] ARCHIVED: This Practice Note has been archived and is not maintained. Implications of Brexit for other jurisdictions: Brexit reshaped how the UK engages with other legal and regulatory systems, both within the EU and beyond. This Practice Note collates news analyses and articles that consider how EU Member States’ preparations for Brexit, together with their existing laws on matters such as trade, enforcement of judgments and the delivery of financial services, may influence the UK. The materials are presented by publication date, with the latest items appearing first......
This Practice Note sets out the guidance for the EXW Ex works Incoterm under the Incoterms® 2020 rules, reproduced with permission from ICC Publishing SA. You can obtain the Incoterms® 2020 rules and further ICC titles from ICC Publishing SA, 38 Cours Albert 1er, 75008 Paris, France, and from ICC United Kingdom, 12 Grosvenor Place, London, SW1X 7HH, UK, as well as www.iccbooks.com. The Incoterms® 2020 rules took effect on 1 January 2020, revising the Incoterms® 2010 rules to mirror market developments over the preceding decade. For the EXW term applicable up to that date, consult Practice Note: Incoterms® 2010 Rules— EXW Ex works [ Archived]. EXW (insert named place of delivery) Incoterms® 2020 Explanatory notes for users 1. Delivery and risk ‘ Ex Works’ signifies that the seller delivers the goods to the buyer when it makes the goods available to the buyer at a specified place (such as a...
This Practice Note sets out the guidance relating to the FOB Free on Board Incoterm within Incoterms® 2020, reproduced with the consent of ICC Publishing SA and presented with acknowledgement. Incoterms® 2020 and other ICC titles can be obtained directly 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, as well as at www.iccwbo.org too. The Incoterms® 2020 rules took effect on 1 January 2020, updating the Incoterms® 2010 set to mirror market developments witnessed over the preceding decade. For the FOB term applicable until then, see Practice Note: Incoterms® 2010 Rules— FOB Free on board [ Archived]. FOB (insert named port of shipment) Incoterms® 2020 Explanatory notes for users 1. Delivery and risk ‘ Free on Board’ signifies the seller completes delivery to the buyer when the goods...
This Practice Note explores the function and significance of boilerplate clauses within a contract. It highlights the boilerplate provisions most frequently seen in transaction-related agreements and considers the method to adopt when reviewing or drafting agreements that contain boilerplate terms. Solicitors handle an extensive range of transactions, yet every one of them will, in some respect, involve written contracts. Each of those contracts ought to include certain boilerplate provisions. What is boilerplate? There is no universally accepted definition of a ‘boilerplate’ clause. Such clauses are often regarded as standard, catch-all terms. They are routinely accepted with minimal thought or bargaining, but treating them this way is risky. It is better to view ‘boilerplate’ as a label for the clauses inserted to govern the mechanics of how the agreement operates and the legal considerations common to most transactions. They are typically located at the start and the close of an...
This Practice Note explores the Hague Convention on Choice of Court Agreements and how it operates when enforcing a court judgment or a judicial settlement. It addresses what counts as a judgment and a judicial settlement, the criteria for recognition and enforcement of a court judgment, including severability, together with enforcement of non-monetary orders and judicial settlements. The Practice Note also outlines the steps for recognition and enforcement, the supporting documents needed, and points specific to England and Wales. Finally, it considers the bases for refusing recognition or enforcement under the convention. For practitioners using the Convention, an explanatory report by Trevor Hartley and Masato Dogauchi offers detailed commentary on each article. It further signposts severability within judgments and the treatment of non-monetary relief and settlements under the convention. Does the Convention...
Scope of this Practice Note This Practice Note addresses matters linked to technology used to help firms comply with their regulatory duties—often referred to as ‘regtech’. It reviews how the Financial Conduct Authority ( FCA) and the Bank of England ( Bo E) (including the Prudential Regulation Authority ( PRA)) engage with regtech, highlights industry activity, and records both the proposal and subsequent withdrawal of an FCA ‘ Robo Handbook’. It examines these facets of what has come to be known as ‘regtech’: what is regtech? the FCA’s approach FCA Tech Sprints digital sandbox other regulator-side developments towards a Robo Handbook industry-side developments other initiatives What is regtech? Regtech is a broad label for the use of technology to help firms discharge regulatory requirements more efficiently and effectively than legacy systems allow—and, at times, for the use of...
What is a legal opinion and when are they given? A legal opinion is a formal statement setting out a considered view on points of law relevant to a transaction. As outlined below, such opinions usually address several different facets of the transaction at hand, and the breadth and depth of the opinion will differ on a case-by-case basis. This Practice Note concentrates on opinions concerning matters of English law. Transactions that involve parties or assets situated in different locations will commonly require multiple legal opinions, each dealing with issues pertinent to the relevant jurisdiction. Historically, English lawyers have given formal legal opinions only to their own clients and have been notably hesitant to issue opinions for the benefit of third parties, particularly where that third party is represented by English counsel. This position reflects the view that another party should...
Key cases on schemes of arrangement This Practice Note summarises selected authorities and linked materials on schemes of arrangement. Matters are grouped by topic and cover: Class issues Jurisdiction/sufficient connection issues Valuation issues Scheme meeting/voting and cram-down Convening hearing/sanction hearing issues Class issues Re SWS Holdings Ltd [2025] EWHC 2690 ( Ch) (sanction) — 9 October 2025. Parallel contract: the Tap Bonds (which would have sat in Class A4) were issued after the scheme meetings and so were not caught by the schemes. However, the beneficial owners directed the security trustee to execute an amendment agreement so their terms were adjusted as if bound by the SWS Scheme (see [9]–[10]). Relevant content: Practice Note: Part 26 scheme deal debrief— SWS Holdings Limited and Greensands Financing Plc (part of the Southern Water group). Re SWS Holdings Ltd [2025] EWHC 2318 ( Ch) (convening) — 2 September 2025. To avoid a...
This How to Guide explains: the time period allowed for registering charges at Companies House the consequences of failing to register a charge at Companies House how to apply for an extension of time, and what the courts will consider when deciding whether or not to allow the extension For detailed information on the registration of security at Companies House, please see the following Practice Notes: Registering security at Companies House How to register security at Companies House Problems with registering security at Companies House—what to do next What is the time period for registering charges at Companies House? All charges created by a UK company or LLP must be registered at Companies House, subject to certain limited exceptions. The ‘period allowed for delivery’ of a registrable charge, together with the accompanying statement of...
This Practice Note summarises principal documents commonly used in debt securities and structured products deals, clarifies when instruments should be executed as deeds rather than simple contracts, and outlines the formalities that apply under English law. It further addresses virtual and electronic signing options, such as e‑signature platforms and electronic global notes, and flags issues to consider when executing foreign law documents. Documents typically involved in debt securities and structured products transactions The documents signed in debt securities and structured products matters differ according to the particular deal and way it is structured. Debt capital markets ( DCM) deals generally follow one of two structural approaches—using either a trustee framework or, alternatively, a fiscal agent framework. A fiscal agent structure is adopted where no trustee is appointed (which can often occur in jurisdictions that do not recognise such...
This Practice Note considers: the key risks for financial institutions lending to commercial organisations that use artificial intelligence ( AI) or to AI companies the principal documentation issues when lending to commercial entities that use AI or to AI companies (as applicable) the main considerations when taking security from commercial entities that use AI or from AI companies To promote clarity and avoid inconsistent usage of AI-related terminology, defined terms in this Practice Note carry the meanings given in Practice Note: Artificial intelligence—glossary of terms for legal professionals. Where further expressions are introduced, their meanings for this Practice Note are set out within it. For broader guidance on AI matters, see Practice Notes: Artificial intelligence and machine learning—an introduction to the technology Artificial intelligence ( AI) resource kit Key risks when lending to businesses that use AI or to AI...
The Financial Services Enforcement Database The Financial Services Enforcement Database contains comprehensive details of every substantive FCA and PRA Final Notice and, when published, Decision Notices dating back to 2014. Users can search and refine the Database by rule breach, keyword, sector, date, seriousness, aggravating and mitigating factors, level of financial penalty, and further measures, including referrals to the Upper Tribunal. Under the Financial Services and Markets Act 2000 ( FSMA 2000), the Financial Conduct Authority ( FCA) and the Prudential Regulation Authority ( PRA) hold a range of powers to gather information for supervisory and enforcement purposes. This Practice Note outlines the FCA’s information‑gathering powers and the limits placed on the disclosure and use of material obtained. These include powers in FSMA 2000, ss 165–169, enabling the regulators to compel firms to supply information and reports, appoint...
This Practice Note gathers archived news and updated documents from the International Swaps and Derivatives Association ( ISDA), covering January 2015 to December 2017. For ISDA developments from January 2018 onwards, see Practice Note: ISDA—latest news on documentation. All ISDA updates mentioned here were originally published on the ISDA website (subscription required for full access). Commentary and related documents are provided by Banking & Finance. 2017 Date of update/announcement from ISDA — ISDA news 15 December 2017 — ISDA webinar on systematic internaliser regime. Why? ISDA issued a webinar, ‘ Are you ready for the Systematic Internaliser Regime?’, examining issues connected to the MIFID II systematic internaliser regime. For more information on systematic internalisers, see Practice Note: Systematic internalisers. 8 December 2017 — Credit Derivatives Physical Settlement Matrix – 2014 and 2003 Confirmations. Why? ISDA published the: 2014...
The Practice Note sets out the law as it stood before 18 May 2021. It summarises the post‑ Brexit challenges for UK financial institutions that previously accessed EU markets through passporting rights. It also examines the UK’s position as a third country (a jurisdiction outside the European Economic Area ( EEA)), equivalence considerations, and the UK’s post‑ Brexit status for financial services firms. Brexit and financial services This note outlines the issues encountered by UK firms that formerly conducted business across the EU via passporting and the implications arising from the loss of those rights. This Practice Note sits within a suite of key notes on Brexit and financial services. Other guides include the following: Brexit— Financial Services—overview Brexit and financial services: materials on the post- Brexit UK/ EU regulatory regime [ Archived] Brexit—impact on financial services [ Archived] Brexit and...
Introduction to Musharaka—a profit and loss sharing instrument of Islamic finance At the heart of Islamic finance lies the maxim ‘no profit without risk’, ie no person should realise a gain unless they bear some degree of risk. This concept is most clearly shown through the application of profit and loss sharing instruments. For further detail on this principle, see Practice Note: Key principles of Islamic finance. This Practice Note examines Musharaka, an Islamic finance technique originally founded on profit and loss sharing and broadly analogous to a conventional partnership arrangement. In straightforward terms, a Musharaka is a partnership customarily entered into by two or more parties, not necessarily for a fixed term, and most commonly for the purpose of undertaking a business venture. In a typical Musharaka, each participant makes a capital contribution to the venture and profits and losses are shared between them. A...
What is Takaful? Takaful stems from the Arabic term ‘ Kafala’, meaning to support one another. It is a form of risk protection arranged in accordance with the principles of Islamic law ( Shari’ah). It provides a distinctive and important substitute for conventional insurance, meeting the protection needs of many Muslims worldwide. Owing, inter alia, to Shari’ah prohibitions on undue interest (riba) and uncertainty (gharar), some Muslim scholars have ruled conventional insurance haram, i.e. impermissible for Muslims. For further details on these barred elements, see Practice Note: Key principles of Islamic finance. As a direct result, until takaful arose, many Muslims across the globe had no practical way to safeguard effectively against risk. Nevertheless, takaful is not limited solely to Muslims; takaful solutions are open to all, regardless of belief or religion. Accordingly, it fills a historic gap that left many without...
This Practice Note sets out practical guidance on the correct execution of simple contracts and deeds by administrative receivers... Quick view The summary below outlines the execution formalities relevant to administrative receivers and points to the location of matching precedent execution clauses. For more detail, navigate to the document type using the links in the first column... Document type: Simple contracts By the company ( Companies Act 2006, s 43(1)(a)): Using the company’s common seal, applied by the administrative receiver under the power in the debenture under which they are appointed — Execution clause—administrative receiver—contract ( Option 2). By the administrative receiver’s signature under the power granted in that debenture, signing in the presence of a witness — Execution...
This Practice Note sets out what undertakings—also referred to as covenants—are, and the typical undertakings seen in commercial loan agreements for an investment grade borrower. It also addresses the usual negotiation issues and areas of focus for both borrowers and lenders. Where relevant, it signposts provisions in Precedent: Facility agreement (term loan): single company borrower—bilateral—with or without security or a guarantee, and the Loan Market Association ( LMA) investment grade multicurrency term facility agreement with/without observation shift (the LMA facility agreement), available to LMA members on the LMA website. The LMA’s user guides (in the Documents & Guidelines section of its website) and the Association of Corporate Treasurers ( ACT) Borrower’s Guide to the LMA’s Investment Grade Agreements provide useful guidance on undertakings in LMA investment grade documentation. Registration with ACT is necessary to obtain access to their guide. For an...
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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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