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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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Summary The character of the asset subject to security typically determines how it can be realised to deliver value to the security holder on enforcement. Funds in a bank account are generally the easiest to realise, as they can usually be set off or appropriated against the secured obligation... Other enforcement resources For points a security holder should assess before enforcing, see Practice Note: How to prepare to enforce security. For guidance on different security types, refer to: Practice Notes: Enforcement—debentures and floating charges Practice Notes: Enforcement—fixed charges For enforcement over shares and land, see: Practice Notes: Enforcement—security over land Practice Notes: Enforcing share security Forms of security and quasi-security over cash in an account There are several methods by which a creditor can secure (or obtain first call on) cash held in a bank account. The approach depends on whether the account is...
ARCHIVED: This Practice Note is archived, not maintained, and provided for background use only. For further details on the Prospectus Regulation, see Practice Note: The UK Prospectus Regulation—essentials [ Archived]. Introduction to the Prospectus Regulation roadmap The Prospectus Regulation ( EU) 2017/119 ( PR) was published in the Official Journal of the European Union on 30 June 2017 and took effect on 20 July 2017, with most provisions applying from 21 July 2019. The PR materially revises the prospectus publication obligations contained in the Prospectus Directive 2003/71/ EC (the PD). As a regulation, it has direct applicability across Member States. This Practice Note sets out an article-by-article roadmap of the PR, detailing for each article: the article title and number, and the corresponding PD provisions For additional guidance on the PR, see Practice Notes: The UK Prospectus...
This table provides a concise overview of typical negotiated outcomes across a range of intercreditor topics, flagging the principal areas where junior creditors’ rights converge or diverge depending on the junior debt instrument; is drawn from documentation in the upper mid‑market and large capitalisation segments of the European leveraged finance market; assumes a second lien facility is documented separately from the senior debt and votes as an independent creditor class. Intercreditor rights may differ because of (among other factors): transaction‑specific structural features; whether the debt is distributed in Europe or the US; documentary requirements of particular investors (especially where junior debt is pre‑placed); and whether a junior creditor has actively negotiated its rights, or they appear in an evergreen intercreditor agreed solely between the sponsor and senior creditors. For further detail on the topics covered in this table, see...
This Practice Note outlines practical points for banking and finance lawyers stepping into in-house positions. Aimed at practitioners within banks and other financial institutions, it explains how an internal role can contrast with private practice and proposes hands-on measures for newcomers. These include learning about the specific bank or financial institution, understanding any internal policies and processes, and clarifying the remit of the in-house banking and finance lawyer within that organisation. It is directed at banking and finance lawyers employed by banks or other financial institutions, rather than those in private practice. It sets out how in-house work may differ and offers practical starting steps for new joiners specifically. The nature of the particular bank or other financial institution For a banking and finance lawyer transitioning to an in-house role at a bank or another financial institution, it is essential at the outset to become...
Guarantees are often an important element of a financing transaction for lenders. Guarantees commonly play a key role in finance deals for lenders and are typically taken together with a security package (see Practice Notes: Guarantees— How guarantees are used in finance transactions and Difference between security and quasi-security— Using security and quasi-security together). They are frequently a requirement of a lender's credit committee approval. It is therefore crucial to grasp when a guarantor might be freed or discharged from liability under a guarantee. This Practice Note examines when a guarantor can revoke its liability by giving notice to the lender, and the resulting effect of that revocation. Note that there are several additional scenarios in which a guarantor’s liability will come to an end. For instance, a guarantee may terminate because: the guaranteed obligation is fulfilled by the principal and the...
Export credit agency ( ECA) backed financing has long served as a dependable funding route for the shipping and offshore sectors, yet the financial crisis expanded the influence of ECAs across all areas, from cruise vessels to drilling units and liquefied natural gas ( LNG) carriers. Banks commonly welcome ECA participation as it enables them to manage capital pressures in a capital‑intensive industry and to address risks tied to exporting to overseas purchasers. ECAs provide, among other measures, direct lending, insurance and guarantees to facilitate ship finance transactions and to safeguard the interests of domestic shipyards selling worldwide. The financing structure and documentation will differ depending on the particular form of support delivered by the ECA. What are Export Credit Agencies? An ECA is typically a governmental body or a quasi‑governmental agency, but it can also be a publicly or privately owned company (acting on behalf of the...
A demand for payment A payment demand is a formal notice served pursuant to the contractual provisions that underpin the liability the issuing party intends to enforce. Such a demand is required where the contract expressly stipulates that issuing a demand is the step that crystallises a party’s duty to pay under the agreement. Situations in which this commonly arises include: where a creditor seeks to realise and enforce its security where there is a default under an ‘on demand’ facility where a party intends to rely upon or call on a guarantee; and where non-payment of a demand constitutes an event of default under the contract The effects and implications of issuing a demand may encompass: crystallising a cause of action that entitles a party to begin legal proceedings starting the running of the applicable limitation period fixing and confirming the date from which a lender’s right to repayment of the loan falls due;...
ARCHIVED This Practice Note has been archived and is no longer maintained. It offers an overview of the implementation and principal changes brought in by the EU Transparency Directive and the EU Transparency Directive Amending Directive in the UK. It reflects the law as at February 2019 and has not been revised to address the UK’s withdrawal from the EU. It also briefly outlines Directive 2004/109/ EC of the European Parliament (15 December 2004) on the harmonisation of transparency obligations concerning information about issuers whose securities are admitted to trading on a regulated market, and its amendment of Directive 2001/34/ EC (the Transparency Directive), together with its background, substance and UK implementation. History and implementation The Transparency Directive emerged from the European Commission’s broader Financial Services Action Plan ( FSAP), a programme designed to establish the legislative foundations for a single EU market in...
Scope of this Practice Note This Practice Note examines the UK regulatory considerations encountered by crowdfunding platforms from a financial services standpoint. It ought to be read in conjunction with the Financial Services and Markets Act 2000 ( FSMA 2000), together with relevant secondary legislation, and regulatory rules and guidance, including, in particular, provisions within the Financial Conduct Authority ( FCA) Handbook and the FCA’s webpage devoted to crowdfunding. This Note briefly outlines initiatives at EU level in relation to regulating crowdfunding, which are discussed in detail in Practice Note EU Regulation of crowdfunding—the ECSP Regulation and the Mi FID II Crowdfunding Directive. Crowdfunding (sometimes referred to as 'crowd sourcing' or 'crowd financing') operates on the basis that individuals seeking capital, such as entrepreneurs, present ventures or businesses on an online platform, and members of the public contribute funds through that platform. There is no...
Tracker Use this Tracker to confirm if a state is a signatory to the Hague Convention on Choice of Courts Agreements and whether the Convention is already in effect for that jurisdiction. Albania — In force: 1 October 2024. Ratified: 25 June 2024. Signed: 13 February 2024. HCCH website: Albania—the Convention enters into force; HCCH website: Albania signs the Choice of Court Agreements Convention; HCCH notification: Albania ratifies the Choice of Court Agreements Convention. Australia — Signed: No. The Joint Standing Committee on Treaties in 2017 backed accession to the Convention and advised that binding treaty action be undertaken. For information, see Australian Parliament— Convention on Choice of Courts accession. Bahrain — In force: 1 July 2025. Acceded: 13 March 2025. For information, see: Bahrain accedes to the Choice Of Court Convention. China — Approval, ratified or...
What is microfinance? The Consultative Group to Assist the Poor ( CGAP) describes ‘microfinance’ as the provision of loans, savings and other basic financial services to the poor. Stakeholders interpret microfinance through their own lenses and thus tend to define it accordingly. Governments regard it as social protection. Donors emphasise its capacity to achieve poverty reduction. Commercial insurers see a pathway to large under-served markets. Analysts use it to spotlight the scale of the ‘bottom of the pyramid’. Academics consider it a crucial financial service for sustainable economic growth. These views broadly mirror those for conventional insurance, except for the clearly specified target group: low-income people. Put simply, microfinance is a collection of practices created to widen access to financial services (including loans, savings products, insurance and remittance services) for low-income clients. Typically, these clients are drawn from the poor...
Unitranche facilities have become a core source of financing for both financial sponsor-backed and non sponsor-backed borrowers in the European leveraged loan market. First gaining traction in the US mid‑market in 2005, they have, from 2012 onwards, steadily captured a share of the European mid‑market each year. This Practice Note describes unitranche facilities, sets out the benefits and drawbacks for borrowers, and examines their principal features in depth. For broader introductory material on acquisition and leveraged finance, see Practice Note: Acquisition finance—introductory guide. For explanations of terminology used in this Practice Note, see: Glossary of acquisition finance terms and jargon. What is a unitranche facility? In essence, a unitranche facility is a single‑tranche term loan bearing a blended senior/junior interest rate, typically recorded in one loan agreement. Unitranche financings are commonly arranged by non‑traditional lenders, ie private debt funds and other...
ARCHIVED: This Practice Note is archived and is not maintained. In each section of this Practice Note, links are provided to the relevant provisions of EU and/or UK legislation, as applicable, and any significant divergence between the relevant EU and UK legislation is clearly identified. EU Market Abuse Regulation—background and purpose The Market Abuse Regulation (the EU Market Abuse Regulation) annulled and superseded the former Market Abuse Directive ( Directive 2003/6/ EC) ( OJ L 96/16) ( MAD) and its implementing legislation on 3 July 2016. The EU Market Abuse Regulation established a refreshed and bolstered EU market abuse framework, introducing a broader scope and more stringent sanctions. Outside of the UK, the Market Abuse Regulation was supplemented by Directive 2014/57/ EU on criminal sanctions for market abuse ( CSMAD). The UK used its powers to opt out of CSMAD, as it already has an...
Step-by-step guide Party A and Party B put in place an International Swaps and Derivatives Association ( ISDA) Master Agreement with a Schedule, and mutually together agree to record their interest rate swap ( IRS). Assume the IRS has a notional of US$100m. The notional amount of the IRS is not exchanged; instead, it is used as the basis for......
This Practice Note aims to outline the principal distinctions between Scots law and English law concerning the creation of fixed security over land and buildings. These differences extend from the forms of security that can be taken over real property, to the ways in which such security is perfected and the significance of those perfection requirements. For broader guidance on taking security over land and, in particular, the position in England and Wales, see Practice Note: Taking security over land. Land and buildings A helpful place to begin is by considering what is meant by land and buildings for the purposes of fixed security. Under Scots law, a standard security can be taken as fixed security over property owned outright (heritable property) or property held under a lease. For leasehold property, a lease for a term of 20 years or less cannot be...
ARCHIVED: This Practice Note has been archived and is not maintained. Last updated March 2021 Tracker overview This Transparency Directive tracker sets out recent legislative and regulatory changes relating to the TD, alongside relevant background materials and subsequent amending and implementing measures from 2001 to the present. It also covers Q& As, recommendations and technical advice issued by ESMA (which succeeded CESR). A list of abbreviations for the tracker is available here. This Practice Note is split into the following sections: Key documents and abbreviations Recent and future developments (2015 onwards) Review and further implementation of the TD (2010–2014) Implementation of the TD (2004–2010) Development of the TD (2001–2004) The TDAD (as adopted), which amended the TD (as adopted), had an implementation deadline of 26 November 2015. For further details, see Recent and future developments (2015 onwards) below. Key documents and abbreviations The following are key materials regarding the...
This Practice Note describes the searches to be completed ahead of completion (pre-completion searches), namely: official searches with priority land charges searches company and bankruptcy searches It sets out when each search is required, how to carry it out, the aim and effect of each search, the applicable priority period, and the steps to take if adverse entries are uncovered. It also points out that additional pre-completion searches may be necessary where a document is executed under a power of attorney. These searches are undertaken for the buyer, tenant or lender to verify that the title information obtained during due diligence remains correct at completion. If a lender is financing the acquisition and taking a charge over the property, it may perform some or all of the pre-completion searches itself, or insist on conditions precedent relating to the provision of...
Why do lenders require security? It is standard practice for lenders to seek security over a borrower’s assets as a condition of making loan facilities available. Granting security gives the lender specific rights over the secured property if the borrower does not repay, including the ability to sell those assets to clear the outstanding debt. What types of security might a borrower be asked to provide? The rights arising from a security interest vary with the form taken. Security may take the form of: Mortgage—under a mortgage, legal and/or beneficial ownership of an asset is transferred to the lender for security, on the basis that it will be returned to the borrower once the debt is repaid or the obligations satisfied; an assignment by way of security is a form of mortgage (see Practice Note:...
What this Practice Note covers This Practice Note provides information and hands-on guidance on English law terms and conditions for lawyers advising debut issuers of debt securities. It concentrates on first-time offerings because the documents produced for an issuer’s maiden issue are commonly followed closely on later transactions. The initial documentation phase is when the issuer and its advisers can review the papers in depth and, subject to accepted debt capital markets practice, influence how the documentation is shaped. The Note outlines the practical dimensions of the key provisions found in the terms and conditions of debt securities. It proceeds on the basis that debut issuers are unlikely to be major corporates, financial institutions, multi-lateral agencies (such as the World Bank) or sovereigns that typically raise funds in the international investment-grade public debt capital markets. Rather, it assumes the issuers will be active in...
What this Practice Note covers The purpose of this Practice Note is to offer information and hands-on guidance on English law trust deeds for lawyers advising first-time issuers of debt securities. The emphasis is on debut issuers because documentation for later offerings in the debt capital markets typically mirrors, with little deviation, the papers used for the issuer’s inaugural deal; the documentation phase of that first issuance is therefore when an issuer and its advisers have the chance to review the papers in depth and, within the limits of accepted debt capital markets practice, to shape the documentation’s form. Accordingly, it concentrates on points most relevant to the initial documentation exercise. This Practice Note: sets out the pros and cons of appointing trustees in debt capital markets transactions and describes the relationship between an issuer and the trustee; and explores 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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