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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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A key characteristic of a floating charge is that, until it crystallises, the chargor may manage the secured assets in the ordinary course of business without needing further permission from the chargee. By comparison, a fixed charge entails the chargee exercising a substantial level of control over the asset subject to the security... This Practice Note examines the consequences of crystallisation of a floating charge the categories of event that trigger or may trigger crystallisation, including automatic crystallisation partial crystallisation For more on the nature of fixed and floating charges, see Practice Note: Fixed and floating charges. For guidance on the pros and cons of floating charges, see Practice Note: Floating charges—advantages and disadvantages. For details on creating a floating charge, see Practice Note: Floating charges. See also Security—frequently asked questions... The effect of...
What does this Practice Note cover? This Practice Note outlines the predominant and widely used form of credit derivative, the credit default swap ( CDS). It also describes the reasons participants use CDS, the manner in which a CDS is documented, and the way CDS are cleared. In addition, it identifies a number of particular CDS structures, including CDS linked to asset-backed securities ( CDS on ABS), basket CDS (covering both portfolio CDS and Nth to default CDS), loan-only CDS ( LCDS) and collateralised debt obligations ( CDOs). What is a CDS transaction? The most prevalent credit derivative is a credit default swap ( CDS). It is an agreement between two parties that hinges on the credit quality of a third party, called the reference entity. That reference entity might be a corporate, a sovereign, a municipality or a comparable...
Varying priority between security interests Competing security interests arise where multiple creditors hold security over the same asset or pool of assets. Establishing the order of priority between those interests dictates the sequence in which each secured creditor may claim against the charged property on enforcement or in an insolvency. If the enforcement proceeds are insufficient to discharge all secured debts in full, priority becomes crucial, as one or more creditors may not recover everything owed if the company cannot meet any shortfall from other assets. In such scenarios, occupying a higher-ranking position plainly offers significant benefits... Priority between security interests is set by general law, but the parties can alter that ranking by agreeing a contractual priority regime in a deed of priority or an intercreditor deed... What are the advantages of entering into a contractual priority...
For any dispute resolution lawyer scrutinising a contract during a dispute, two central questions arise: what does the contract signify? what rights and obligations do the parties hold under it? This Practice Note explains the five interpretative principles the courts employ to address those questions, first articulated by Lord Hoffmann in 1998 in the leading case Investors Compensation Scheme v West Bromwich Building Society ( ICS), with additional guidance from later Supreme Court authorities: Rainy Sky v Kookmin (2011), Arnold v Britton (2015) and Wood v Capita (2017), as outlined further below. Read this alongside Practice Note: Contract interpretation—rules of contract interpretation. Depending on the forum in which your case is heard, you should also consider any extra requirements—see below: Court specific guidance. ICS v West Bromwich Building Society— Lord Hoffman's guiding principles In 1998, in Investors Compensation Scheme v West Bromwich Building Society, Lord...
A borrower will typically ask any potential lender to sign a confidentiality letter. This letter, settled between the borrower and the proposed lender, is usually managed by the parties’ in-house legal teams. It is most often drafted by the borrower’s internal lawyers and then sent to the lender’s in-house lawyers for their review. On occasion, external lawyers will both prepare and assess these confidentiality letters... Parties The parties to the confidentiality letter will be: the prospective lender; and the prospective borrower Drafting the confidentiality letter Finding a suitable precedent Precedent Comments Confidentiality agreement—one-way—pro-recipient This confidentiality agreement is suitable where one party supplies information to a recipient in connection with a proposed transaction and is framed from the recipient’s standpoint. It can be adapted for lending arrangements where: the prospective borrower is the party disclosing the information (the Discloser) the prospective lender is the...
Fulfilling conditions precedent in an acquisition finance transaction broadly mirrors other lending arrangements. However, compared with an investment grade transaction, acquisition finance frequently involves a markedly larger set of conditions precedent, reflecting its higher risk profile and greater complexity. This note summarises, in the context of acquisition finance: the purpose of conditions precedent key types of conditions precedent satisfying conditions precedent For further detail on conditions precedent in acquisition finance, see: Conditions precedent (‘ CPs’): Tom Speechley: Acquisition finance. For general guidance on satisfying conditions precedent on a lending transaction, see Practice Note: Conditions precedent. Purpose of conditions precedent Conditions precedent are included in the facilities agreement(s) for the lenders’ protection. Lenders decide whether to provide financing based on a range of legal and commercial assumptions and qualifications. Some of these are expressly recorded in the credit papers they prepare as part of the...
Practice Note This Practice Note offers practical direction on how companies should execute documents after 6 April 2008 (being the date on which the pertinent provisions of the Companies Act 2006 ( CA 2006) took effect). It addresses the execution of deeds by companies, and the execution of simple contracts by and on behalf of companies. If advising on documents signed before 6 April 2008 (for instance, in a dispute), practitioners should consider the relevant provisions of the Companies Act 1985. Throughout, it is assumed the executing company is a private company subject to CA 2006 and that the document is in writing. For execution points relevant to other legal entities, see: Execution—overview. We have assembled a collection that serves as a comprehensive, interactive resource to help users identify and work through the concepts and common issues that arise when executing...
A lending transaction is, at its core, the provision of funds by a lender to a borrower. Such dealings can range from a modest bank overdraft for a customer right through to secured, syndicated facilities arranged to finance the acquisition of a multinational group, covering everything in between. This Practice Note offers an introductory guide to lending transactions and their key features. It explores the various types of loan arrangement and provides an overview of the structure of a typical loan, before addressing the documentation, alongside security, quasi-security and intercreditor considerations. It identifies key legal issues that may arise on lending transactions and then provides an overview of specialist finance transactions, including: project finance real estate finance acquisition finance asset finance The Practice Note introduces loan transactions in a commercial context and does not cover consumer...
ARCHIVED : This Practice Note is archived and is not being updated. Public Private Partnership ( PPP) structures are widely used by governments to draw on private investment, expertise and risk in procuring infrastructure, with the prospect of delivering a project more efficiently and at lower cost. Among the most prevalent PPP approaches for procuring infrastructure projects is Build Operate Transfer ( BOT). The particulars of a BOT arrangement vary according to the type and features of the project......
What does this Practice Note cover? This Practice Note describes the duties and functions of a bond trustee appointed under an English law trust deed for a bond issue. A trustee is not a feature of every bond offering. Some issues proceed without one. The issuer chooses whether to use a trustee or a fiscal agent—see Practice Note: Parties in an issue of debt securities— Fiscal agent or trustee. Bringing in a trustee has significant implications for the issuer and for bondholders (see: Reasons for appointing a trustee below). In this Practice Note, ‘bonds’ is used as a catch-all term for debt securities of all kinds (such as bonds, notes and commercial paper). Be aware, however, that alternative considerations can arise in structured finance deals. For an explanation of the difference between ‘bonds’ and ‘notes’ and the definition of ‘commercial paper’, see Practice Note: Types of debt...
at the Land Charges Department When a creditor lodges a bankruptcy petition, the court must, as promptly as reasonably practicable, send notice of the petition to the Chief Land Registrar with a request that it be entered in the register of pending actions. In addition, once a bankruptcy order is made, the official receiver must notify the Chief Land Registrar so that the order is recorded in the register of writs and orders. These records are made irrespective of whether the debtor or the bankrupt, as applicable, is known to own any real property. Both registers are kept by the Land Charges Department of HM Land Registry at its Plymouth office and are available for public inspection. An Official Search of these registers (a bankruptcy search) against a specified name should show whether, for that name, a bankruptcy petition has been presented and, where...
Reasons for amending security documents and key risks Reasons for amending a security document There are occasions when parties may decide to revise existing security documentation. Typical triggers include: wanting to alter the obligations that are secured the chargee seeking to assign or novate its security following a transfer of the underlying debt adding further assets as security or changing the nature of a current charge (eg converting a floating charge into a legal mortgage) correcting an error or formally recording an agreed amendment Parties may conclude that updating an existing security document is cheaper and more straightforward than putting a fresh one in place. Key risks of amending security documents New security? Depending on the amendment, a liquidator or administrator could assert that new security has been created, with the consequence that it might be set aside (see Practice Note: Introductory guide to antecedent transaction...
STOP PRESS: On 29 July 2024, a significant overhaul of the UK listing framework took effect, which included scrapping the premium and standard segments and establishing a single listing category for equity shares in commercial companies. This commercial companies category is heavily disclosure-led and sits alongside other listing categories, such as the shell companies, secondary listing and closed ended investment fund categories. A new UK Listing Rules sourcebook came into force to implement these changes, and the previous Listing Rules sourcebook was revoked. For further information, see Practice Note: Reform of the UK listing regime—fundamentals. This Practice Note reflects the listing regime prior to 29 July 2024. It relates to the admission of depositary receipts, commonly referred to as global depositary receipts ( GDRs), to listing on the Official List of the Financial Conduct Authority ( FCA) and to trading on the main market for...
While due diligence features in every commercial finance deal, it becomes indispensable in project finance, where the nature of projects brings heightened risk. For more information on the typical risks involved in a project finance transaction, see Practice Note: Project risks and risk allocation. Across most projects, the diligence exercise concentrates on a number of recurring themes. This Practice Note outlines those focus areas and indicates the information lenders are likely to demand. Scope of due diligence in project finance transactions In a standard project finance deal, diligence spans a wide range of matters, such as: legal and political matters environmental and social matters insurance requirements tax and accounting issues Lenders and the sponsor frequently engage in robust negotiation over the breadth of the diligence reports, especially the legal report. For more information on the role of a sponsor, see Practice Note:...
This Practice Note outlines key authorities and associated materials on the acceleration of debt and the enforcement of security. The cases are grouped by subject and include: Cases on the process leading to acceleration and enforcement Cases relating to demands and events of default Cases concerning a mortgagee’s duties when enforcing by sale Cases concerning a mortgagee in possession Cases relating to the Financial Collateral Arrangements ( No 2) Regulations 2003 Cases on the process leading to acceleration and enforcement Names of parties: Miller v Cook (1870) L. R. 10 Eq. 641 Judgment date: 13 July 1870 Case summary: This authority establishes the central proposition that security must not be enforced in an oppressive fashion; accordingly, the security holder will, in almost all instances, need to give notice of enforcement and exercise remedies properly, for example by...
Administration Administration is a process intended to give a company time to breathe, aiming either at rescue or restructuring, or at securing a better result for all creditors than liquidation wherever possible. The core statutory framework for administration sits in Section 8 and Schedule B1 of the Insolvency Act 1986 ( IA 1986), together with the Insolvency ( England and Wales) Rules 2016, IR 2016, SI 2016/1024 rr 3.1–3.70, which apply in tandem. An administrator, an insolvency practitioner appointed under IA 1986, takes control of the company’s business and assets to pursue one of the three statutory purposes of administration set out in IA 1986......
This Practice Note offers hands-on guidance on correctly executing simple contracts and deeds for general partnerships. For details on execution by limited liability partnerships, see Practice Note: Execution formalities—limited liability partnerships. For execution by limited partnerships, see Practice Note: Execution formalities—limited partnerships. We have assembled a comprehensive, interactive Execution collection to help users pinpoint and address the key concepts and recurring issues in document execution. Each stage features practical guidance, precedent clauses and Q& As tailored to that step. For more, see: Execution collection... Quick view The summary below outlines the core execution formalities for partnerships and indicates where the relevant precedent execution clauses are located. For fuller guidance, go to the document type via the links in the first column... Simple contracts Can be made: On behalf of the partnership. Executed by: The...
This Practice Note This Practice Note examines force majeure within the context of English law and the circumstances in which a force majeure event may bring a contract to an end, addressing the burden of proof, construction of force majeure clauses (including the operative verb), procedural obligations, and how to challenge the validity of a force majeure clause. See also Practice Notes: Force majeure clause analysis—a practical guide Force majeure—key and illustrative decisions For assistance when giving notice of a force majeure event, see Precedent: Force majeure notice. Force majeure clauses came under intense scrutiny in light of ‘world events’, such as the coronavirus ( COVID-19) pandemic in 2020 and Russia’s invasion of Ukraine in 2022, on which see: Force majeure and current world events below......
This Practice Note sets out practical guidance on how overseas companies execute documents, with particular emphasis on executions occurring on or after 1 October 2009 under the Overseas Companies ( Execution of Documents and Registration of Charges) Regulations 2009, SI 2009/1917. For the purposes of this note, it is assumed the contract is in writing. We have created an Execution collection—an extensive, interactive resource—to help users recognise and navigate the concepts and common issues arising on execution. Each stage or phase contains practical guidance, precedent clauses and Q& As relevant to that stage. For further information, see: Execution collection. The law relating to overseas companies The execution of documents by overseas companies is governed by the Overseas Companies ( Execution of Documents and Registration of Charges) Regulations 2009 ( OC( EDRC) R 2009), SI 2009/1917. These regulations apply, with...
Parties often wish to stipulate that the entirety of their contractual relationship is governed by the written agreement they have signed. This is known as an ‘entire agreement clause’. This Practice Note examines why such clauses are used and the principal issues relevant to their operation, including the interplay between entire agreement clauses and implied terms, misrepresentation, fraud and exclusion clauses, non-reliance statements, and broader matters of evidential estoppel and contractual estoppel. For further guidance on construing the scope of parties’ contractual obligations, see Practice Notes: The parol evidence rule in interpreting contracts Contract interpretation—admissibility of surrounding documents and related content What is an entire agreement clause? At its simplest, an entire agreement clause provides that the whole of the parties’ contractual dealings is governed exclusively by the terms contained in their written contract. Consequently, when interpreting the contract, the court is...
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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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