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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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Financing arrangements commonly require guarantees from more than one guarantor. For example, a group may provide guarantees from several companies to back group borrowings, or each director may guarantee loans advanced to their company. In these situations, it is essential to consider: the lender’s rights against the guarantors and when those rights might be reduced, and the rights of each guarantor against co‑guarantors How multiple guarantor guarantees are documented in a single guarantee signed by all co‑guarantors—this may be a standalone guarantee executed by every co‑guarantor (see, for example, Precedent: Guarantee and indemnity: cross guarantee from group companies—bilateral—all monies) or bespoke provisions in the facility agreement to which all the co‑guarantors would be parties, or in multiple separate guarantee documents, one for each co‑guarantor See also, Practice Note: Guarantees— How guarantees are used in finance...
ARCHIVED: This Practice Note has been archived and is not maintained In brief, a market disruption clause explains how loan interest is determined when a lender’s funding costs exceed the London Interbank Offered Rate ( LIBOR) or another nominated benchmark—often arising when the financial system is under strain, causing markets to seize up, or when the particular lender faces solvency issues. Either scenario is liable to increase the lender’s cost of funds. These clauses are typically found in facility agreements where interest is set by reference to a floating rate such as LIBOR or the Euro Interbank Offered Rate ( EURIBOR). This Practice Note considers market disruption provisions in the setting of LIBOR-based syndicated facilities. Similar considerations apply to syndicated facilities that calculate interest by reference to EURIBOR and other benchmark rates. The ongoing move away from LIBOR to risk‑free rates, including SONIA, will have an...
Practice Note on governing law and jurisdiction in finance transactions This Practice Note examines governing law and jurisdiction within finance transactions. It covers: the meaning of governing law and jurisdiction governing law in depth, including how the chosen law is identified jurisdiction in depth, including rules used to decide jurisdiction governing law clauses in finance deals and instances where English law may not suit jurisdiction clauses in finance deals, and factors when choosing exclusive, non-exclusive or asymmetric jurisdiction service of process and process agents arbitration clauses Further guidance appears in these Practice Notes: Applicable law—a guide for dispute resolution practitioners Jurisdiction—a guide for dispute resolution practitioners What is meant by governing law and jurisdiction? Governing law and jurisdiction are distinct concepts. Governing law The governing law (also called the applicable law) is the body of law a court applies to...
In an acquisition finance deal, the buyer and seller settle the acquisition documentation between themselves, with the lenders’ lawyers given an opportunity to review and comment. Often, the lenders’ interests mirror those of the buyer, so a strong negotiating position on the buyer’s side will usually benefit the lenders as well. This note highlights areas of particular interest for lenders’ lawyers in specific acquisition documents. More generally, they will wish to ensure that: the target companies and/or assets correspond to lenders’ expectations in terms of identity and value the acquisition contracts provide sufficient contractual protections to shield the target group from unforeseen financial liabilities the acquisition documents address any key issues arising from the disclosure letter and the due diligence process For an introductory overview of acquisition and leveraged finance, see Practice Note: Introductory guide to acquisition finance. For...
Many of the standard conditions precedent ( CPs) associated with a conventional syndicated loan facility will likewise be highly relevant to a real estate finance transaction. For further information on those CPs, please refer to Practice Note: Conditions precedent. In a real estate development finance arrangement, the borrower obtains funding not only to acquire the property but also to carry out the development itself. As a result, a large number of CPs used in real estate finance investment facility agreements will also govern development facilities, with additional CPs required to address the development aspects of the transaction. This Practice Note considers the real estate finance specific CPs that typically arise and apply in a real estate development finance transaction. For details on CPs in real estate finance investment facilities, see Practice Note: Real estate...
Coronavirus ( COVID-19) In response to the pandemic, the government introduced the Bounce Back Loan Scheme ( BBLS), the Coronavirus Business Interruption Loan Scheme ( CBILS) and the Coronavirus Large Business Interruption Loan Scheme ( CLBILS) to help SMEs and bigger companies secure funding. Each scheme limited when lenders could obtain personal security, allowing it only in specific situations and under defined conditions. Applications for these three schemes ceased on 31 March 2021 and they were succeeded by the Recovery Loan Scheme ( RLS), which began on 6 April 2021 to back UK businesses as they rebuild and expand post-pandemic. The RLS likewise sets parameters for taking security from individuals. For more information, see Practice Note: Coronavirus ( COVID-19)—implications for lending transactions [ ARCHIVED]— What are the implications for borrowers and lenders of the government and regulators’ response to coronavirus (...
This Practice Note outlines the usual features of a mezzanine facility and identifies the principal amendments required to convert a senior facilities agreement into a mezzanine facility agreement in an acquisition finance context. For a primer on acquisition and leveraged finance, see Practice Note: Introductory guide to acquisition finance, and for definitions of commonly used terms, see: Glossary of acquisition finance terms and jargon. For the role of mezzanine facilities in real estate finance, see Practice Note: Senior loans, mezzanine loans and intercreditor arrangements in real estate finance. What is mezzanine debt? The mezzanine facility is a layer of funding that sits behind the senior facilities in priority. It is sometimes deployed in leveraged finance transactions: to bridge any gap in the purchase price once the senior facilities and equity investment (and any other funding) are taken into account, and to reach lenders who...
This Practice Note outlines the principal issues to take into account when altering an existing facility agreement. It covers: typical drivers and rationales for changing a facility agreement key considerations when amending a facility agreement in the context of a bilateral or syndicated transaction matters to address where guarantees or security are in place ways to document an amendment, including whether to use an amendment letter, an amendment agreement, or an amendment and restatement agreement usual conditions precedent to effectiveness points concerning fees, costs and expenses This Practice Note does not address one-off waivers and consents. For further information on waivers and consents, see Practice Note: Waivers and consents. For material on amending security documents, see Practice Note: Amending security documents. For general contract law guidance on varying a contract, see Practice Note: Contract...
Exporters aiming to take their goods or services into overseas markets often face significant exposure as they pursue new business. The likelihood of non‑payment in such environments increases where there is elevated: commercial risk (ie failure to pay by an overseas buyer, the buyer’s insolvency, unilateral breach of contract, non‑performance of the asset, or non‑payment by off‑takers), and political risk (ie the risk that government action or political circumstances will adversely affect local business and/or international investment) For certain goods or services, or in particular markets, these risks can materially restrict the availability of commercial financiers; in the absence of Export Credit Agency ( ECA) support, many projects may never get off the ground. ECAs step into this gap to help mitigate the commercial and/or political risks inherent in dealing with an overseas business, providing a vital source of financial backing to...
This Practice Note reviews the Hague Convention on Choice of Court Agreements, which governs both jurisdiction and the recognition and enforcement of judgments. It outlines the scope of the Hague Convention on Choice of Court Agreements and the need for an international case anchored by an exclusive choice of court agreement. It also examines issues lying outside the Convention’s reach, whether by specific exclusions within the text or through declarations made by contracting states. The Practice Note considers how the Hague Convention on Choice of Court Agreements applies in the UK. An explanatory report on the Hague Convention on Choice of Court Agreements by Trevor Hartley and Masato Dogauchi supplies detailed commentary on each article. When did the Convention come into force? The Hague Convention on Choice of Court Agreements was concluded on 30 June 2005 and was first ratified by Mexico, followed by the EU. In...
A facility agreement sets out the conditions under which a Lender provides finance and is essential for all loan transactions. This Practice Note offers an entry-level overview of negotiating a facility agreement for those unfamiliar with lending transactions. The aims of the parties A table of useful precedents Guidance on the structure of a facility agreement Key points to prioritise during negotiation Links to more detailed materials Common pitfalls that may arise See also Practice Note: Introductory guide to lending, which explains the role of the facility agreement in the context of a loan transaction. Aims of the Parties Lender’s aims The lender ( Lender) aims to safeguard its investment during facility agreement negotiations, ensuring its capital is repaid, interest is paid on time, and fees are settled when due......
The UK PRIIPs Regulation, UK implementation and Brexit The purpose of this Practice Note is to set out an overview of the UK Packaged Retail and Insurance-based Investment Products ( PRIIPs) Regulation ( Assimilated Regulation ( EU) 1286/2014), which is being superseded by a UK retail investor disclosure regime for Consumer Composite Investments ( CCIs). Central to the PRIIPs framework is the obligation on product manufacturers to prepare a standardised, pre-investment Key Information Document ( KID) for each PRIIP, enabling retail investors to compare products and decide whether a PRIIP suits their needs. The approach is not novel, drawing largely from the undertakings for collective investment in transferable securities ( UCITS) Key Investor Information Document ( KIID). For further detail on the EU PRIIPs Regulation and associated level 2 measures—covering scope, principal requirements, and the prescribed form and content of the KID—see Practice Note: EU...
While private sector defined benefit pension schemes ( DB schemes) have been dwindling over time, more than 5,000 such schemes still persist within the private arena, collectively covering upwards of nine million members in total. Fears about deficits and attempts by employers to sidestep obligations have notably created an intricate mix of regulation and legislation, increasingly requiring lenders and their advisers to carefully factor DB schemes in from the very start of any deal and throughout both any restructuring and any insolvency process. The Pensions Act 2004 ( Pe A 2004) empowered the Pensions Regulator ( TPR) to issue contribution notices or financial support directions to those connected to or associated with the scheme employer, ultimately rendering them responsible for providing backing or finance to underfunded DB schemes (the so‑called ‘ Moral Hazard’ powers). In addition, Pe A 2004 brought in a...
This Practice Note sets out information and practical guidance on the EU rules for non-performing loans ( NPLs), which create obligations when selling, buying or delivering credit services relating to NPLs. It provides: an overview of the regime, including why it was introduced and the dates from which it applies details of sellers’ obligations, identifying which entities are in scope and the information that must be supplied details of purchasers’ obligations an outline of the requirements placed on credit servicers The Practice Note also points out areas where the rules are uncertain. Terms shown in italics in this Practice Note are defined in the NPL Directive and explained further below. There is no equivalent legislation in the UK at present. However, the EU rules affect non‑ EU purchasers of NPLs, so they will impact the loan market and market...
Types of tidal and wave technologies Tidal energy encompasses methods that capture the force of ocean water surging during the ebb and flow of tides. At present, tidal power falls into three principal types: tidal stream, tidal barrage and tidal lagoon. Tidal stream employs carefully sited turbines, either floating or fixed to the seabed, to extract energy from moving water as the tide comes in and goes out. Barrages are constructed across rivers, bays or estuaries, acting as a dam that holds water as the tide rises and releases it through turbines to generate power. Tidal lagoons are comparable to barrages, retaining water within a man-made coastal structure and generating power through turbines as the lagoon fills and empties. Wave energy describes technologies that harness kinetic energy from changes in the height and speed of ocean swell. Wave power is still in its infancy and there is no...
Introduction to geothermal energy Geothermal energy is the heat stored within the earth’s sub-surface. For the renewable power projects considered in this Practice Note, it means producing electricity by applying a range of technologies that use geothermal heat as the primary thermal input. For countries that can tap appropriate resources, geothermal generation can be central to the energy transition, tackling the familiar dilemma that arises when diversifying away from conventional plant towards renewables: how to secure a reliable, sustainable baseload supply in the absence of proven, large-scale, long-term battery storage. It also offers an important edge over pipeline gas and Liquid Natural Gas ( LNG)—another contributor of baseload capacity that still features in the transition, particularly in developing markets, by virtue of being cleaner than coal—because it is indigenous. Consequently, it cuts reliance on, and exposure to, the global hydrocarbon value chain and...
What does this Practice Note cover? This Practice Note is designed to help practitioners grasp interest provisions in Loan Market Association ( LMA) recommended form facilities agreements. It clarifies concepts, outlines the LMA position, and flags drafting considerations. Summarises, in brief, what interest rate provisions mean within a loan agreement Sets out how the LMA treats these points in its templates Highlights the principal features of facilities referencing compounded risk-free rates ( RFRs) Defines switch mechanisms and offers guidance on the LMA standard form switch provisions Provides a key points checklist for preparing a compounded RFR-based facilities agreement Gives an overview of the move away from LIBOR The Note concentrates on provisions in the LMA Multicurrency Term and Revolving Facilities Agreement that incorporates backward‑looking compounded rates and forward‑looking term rates with rate‑switch provisions (lookback without observation shift). It does not cover recommended form facilities that are built on, or revert to, Term RFRs,...
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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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