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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 bill of exchange is a financial instrument used to move funds from one party to another without transferring the physical money. A promissory note is commonly employed in comparable trade finance contexts, but the key distinction is that a bill of exchange constitutes an order to pay (typically the drawer instructing the drawee to pay the payee), whereas a promissory note embodies a promise to pay (the maker promising payment to the payee). Bills of exchange and promissory notes are regulated by the Bills of Exchange Act 1882 ( BEA 1882). This Practice Note examines the form these instruments must take under the BEA 1882 and otherwise. Historically, bills of exchange and promissory notes existed only as paper documents. Since the Electronic Trade Documents Act 2023 ( ETDA 2023) took effect, however, electronic bills of exchange and promissory notes issued on or after 20...
ARCHIVED This Practice Note has been archived and is not being maintained. Coronavirus ( COVID-19) Lawyers worldwide have been contending with shared concerns arising from the coronavirus ( COVID-19) pandemic. Several themes are of particular significance to banking & finance practitioners. For deeper insight, consult Practice Note: Coronavirus ( COVID-19) implications for Banking & Finance lawyers, which collates news, practical guidance and analysis on the evolving impact of COVID-19. This Practice Note highlights the principal issues relevant to real estate finance during the COVID-19 period. For broader lending considerations triggered by the COVID-19 outbreak, see: Practice Notes: Coronavirus ( COVID-19)—implications for lending transactions Coronavirus ( COVID-19)— Banking & Finance frequently asked questions [ Archived] Impact on real estate finance COVID-19 has cut to the core of most real estate finance ( REF) deals, influencing asset valuations, rental cashflow and construction timetables. Both lenders and borrowers should...
ARCHIVED: This Practice Note is archived and is no longer maintained. Coronavirus ( COVID-19) Lawyers around the globe have been tackling shared concerns arising from the coronavirus ( COVID-19) pandemic. A range of issues are especially pertinent to banking and finance practitioners. For deeper detail and commentary, see Practice Note: Coronavirus ( COVID-19) implications for Banking & Finance lawyers, which is regularly updated with news, practical guidance and analysis on the impact of COVID-19 developments. This Practice Note covers areas such as Force Majeure (which is not the same as the derivatives Force Majeure provisions) and the execution of documents, and explains the implications for various categories of banking and finance lawyers. It concentrates on the position of derivatives lawyers and the ways in which the COVID-19 pandemic has already affected the derivatives market, as well as the disruption expected to continue for the...
STOP PRESS: The UK prospectus framework presently draws on the EU Prospectus Regulation, preserved in domestic statute following Brexit as the UK Prospectus Regulation. The UK is reassessing this regime within broader moves to reshape the capital markets in the UK and further bolster the country’s appeal as a leading global listing venue for potential issuers. As part of this, the......
Under the Companies Act 2006 ( CA 2006), there are two categories of members’ meetings: general meetings and annual general meetings ( AGMs). Members can be convened to a general meeting at any time, and as often as required in a year, to pass resolutions authorising particular changes or endorsing specific actions. A public company must hold an AGM every year within six months starting the day after its accounting reference date. A private company is not obliged to hold an AGM annually, although it may elect to do so, or its articles of association may stipulate an annual AGM. The CA 2006 contains the detailed rules for calling and conducting a general meeting. A company must also adhere to any provisions in its articles regarding convening general meetings. For the essentials of calling a general meeting, see Practice Note: Calling a general...
Introduction This Practice Note sets out the principal documents usually required at financial completion of an onshore wind farm or large scale ground mounted photovoltaic (pv) solar project in Great Britain ( GB), together with concise explanations of each. It is prepared on the basis of a primary transaction in which a special purpose vehicle ( SPV)—commonly termed ‘ Project Co’ and referred to as Project Co in this Practice Note—owns and finances the project, and at close the following are executed or provided: project documents (energy and operations, property, planning, and construction) project finance documents shareholder finance documents associated due diligence reports, legal opinion and other ancillaries Nevertheless, this documents list can also serve as a reference in a secondary market onshore wind farm or solar transaction, since many documents needing review and/or amendment will be identical. For a...
Introduction This Practice Note outlines the principal documents commonly required at financial close for a merchant waste to energy project, together with a brief summary of each. It is prepared on the basis of a primary deal where a special purpose vehicle ( SPV)—typically known as ‘ Project Co’ and referred to as Project Co in this Practice Note—owns and funds the project, and where the following are executed or provided at financial close: project documents (energy and operations, property, planning, environmental and construction) project finance documents shareholder finance documents associated due diligence reports, legal opinion and other ancillaries That said, this list can equally serve as a reference point for a secondary market merchant waste to energy transaction, since many documents requiring review and/or amendment will be the same. For a companion template of this completion documents list, without document...
Lawful grounds for data processing under the GDPR—summary for financial services firms This Practice Note outlines how financial services firms may rely on legal obligation or legitimate interest as a lawful basis for handling personal data under the General Data Protection Regulation ( EU) 2016/679 ( EU GDPR), and the Assimilated Regulation ( EU) 2016/679 ( UK GDPR), which applies in the UK. This overview focuses on reliance by firms in the financial services sector in particular. For general background on the EU GDPR and UK GDPR, see the following Practice Notes: Introduction to the EU GDPR and UK GDPR The Data Protection Act 2018 The Information Commissioner’s Office ( ICO) has issued guidance on the UK GDPR, which is available here. Note that the Data ( Use and Access) Act 2025 ( DUAA 2025) obtained Royal Assent on 19 June 2025 and partly...
Cryptoassets—the basics At its most basic, cryptoassets are a type of digital currency that uses cryptography to validate transactions conducted in that currency. Functioning without a central authority, they provide near-instant, pseudonymous transfers, operating outside the conventional banking system. For further reading on the formation of cryptoassets, see: Fintech—overview Cryptoassets—overview Practice Note: Web 3.0, digital assets and cryptoassets—essentials Insolvency and restructuring in the context of cryptoassets This Practice Note examines issues an insolvency professional (including an insolvency practitioner ( IP)) may encounter when appointed to handle a cryptoasset-related insolvency. It does not address the position of cryptoassets within personal bankruptcy. Although it is broadly accepted that legal and regulatory scrutiny of cryptoassets lags behind, legislators and regulators—alert to their rapid expansion and market capitalisation—are swiftly strengthening existing frameworks or crafting new regimes. For further information, see Practice Notes: UK regulation of...
This Practice Note forms part of a wider suite of Practice Notes on airline insolvency; for additional detail, see Practice Notes: Guide to airline insolvency—introduction Guide to airline insolvency—international considerations and implications for office-holders Insolvency proceedings Commencement of insolvency proceedings concerning an airline can carry differing implications for a financier, which will turn on both the category of procedure used and the way in which it is brought. Within the UK, the processes most often encountered in airline insolvencies are administration, liquidation and receivership (acknowledging that the last is, strictly, a contractual remedy rather than a formal insolvency process). Following the Corporate Insolvency and Governance Act 2020 ( CIGA 2020), a company may enter a standalone moratorium intended to provide limited protection from certain creditor claims and enforcement steps. To date, there have been no recorded instances of an airline entering such a...
ARCHIVED: What is the proposed goods mortgage? On 14 May 2018, HM Treasury ( HMT) released its conclusions after reviewing responses to its 22 September 2017 consultation on reforming the Bills of Sale Acts. In light of the concerns identified, the small and shrinking market, and wider work on high‑cost credit, the government confirmed it does not intend to bring forward legislation at this time. For further details, see News: Goods Mortgages Bill: HM Treasury’s response to consultation— LNB News 14/05/2018 28. Accordingly, this Practice Note is retained for background information only. On 23 November 2017, the Law Commission published its report on the Goods Mortgages Bill, containing the final version of the Bill together with its recommendations. Jacqueline Cook, a member of the Lexis®PSL Banking & Finance consulting editorial board and senior professional support lawyer in the finance practice at Stephenson Harwood LLP, London, sets out an...
Overview This Practice Note sets out what structured deposits are and discusses: the definition of structured deposits, the key components of a structured deposit, viewed from both the investor’s perspective and that of the bank receiving the deposit, and regulatory considerations, including activities regulated under the Financial Services and Markets Act 2000 ( FSMA 2000), possible cover for investors through the Financial Services Compensation Scheme ( FSCS), the possibility of holding a structured deposit within an Individual Savings Account ( ISA) under the Individual Savings Account Regulations 1998, SI 1998/1870, and how Assimilated Regulation ( EU) 1286/2014 (the UK PRIIPs Regulation) and the Financial Conduct Authority ( FCA)’s Consumer Duty apply to structured deposits marketed to retail clients. What are structured deposits? A structured deposit is a type of investment where: the investor places funds for a fixed period with a bank or other...
The Lexis+® UK Financial Services team’s One minute guides are a set of Practice Notes offering swift overviews of Financial Services regulatory subjects. Designed to bring readers up to speed fast, the One minute guides below provide concise summaries and address a range of Financial Services areas. For fuller direction on these, and other Financial Services matters, consult the Lexis+® UK Financial Services essentials Practice Notes, as listed in Essentials Practice Notes—financial services. For a primer on the Lexis+® UK Financial Services content types, see Practice Note: Financial Services—getting started guide. EU (and EU derived) FS regulation one minute guides AIFMD—one minute guide—this bite-sized guide distils the principal obligations under the Alternative Investment Fund Managers Directive ( AIFMD). Find this Practice Note, together with additional material on AIFMD, in Financial Services AIFM regime—overview Appealing against a European Supervisory Authority...
P. R. I. M. E. Finance Arbitration Rules In 2021, the P. R. I. M. E. Finance Arbitration Rules were updated, and the 2022 edition took effect on 1 January 2022, governing arbitrations begun on or after that date (the P. R. I. M. E. Finance Rules; the Rules). The Rules also set out model clauses together with a model submission agreement. This Practice Note explains how to deal with a notice of arbitration under the P. R. I. M. E. Finance Rules. A respondent is required to send its response to the Permanent Court of Arbitration ( PCA) within 30 days of receiving a notice of arbitration under the P. R. I. M. E......
Priorities of creditors When insolvency arises, most jurisdictions prescribe the sequence in which creditors are satisfied from the debtor’s estate, commonly referred to as the payment waterfall. Certain creditor groups may receive preferential ranking for all or part of their claims. If restructuring or insolvency could proceed in several countries, differences in creditor priority may influence where proceedings are started (see Practice Note: Forum shopping and practical ways to move COMI). Country order of priorities Lexology Panoramic Guide (see in particular Qs 38–41) Austria Preferential claims—such as the costs of the proceedings, disbursements for preserving and managing the insolvency estate, specified early termination liabilities, claims for performance of contracts requiring actions by both the debtor and the counterparty (where the insolvency administrator opts to perform), remuneration of certain creditors’ associations participating in the case, and pension deficits accruing after the opening of...
This tax tracker outlines the current position of US FATCA intergovernmental agreements ( IGAs) and UK FATCA IGAs. It is organised into three sections: US FATCA— IGAs in force US FATCA— IGAs signed, or agreed in substance, but not yet in force UK CDOT—automatic exchange of information agreements between the UK and Crown dependencies and overseas territories US FATCA— IGAs in force Set out below is a compilation of IGAs between the US and another country that are currently in force. Be aware that the date an IGA took effect may differ from the date on which that jurisdiction is regarded, under US law, as having an IGA in effect. For further detail, see Practice Note: US: Foreign Account Tax Compliance Act ( FATCA)—summary — What is an intergovernmental agreement?. This list is drawn from US Treasury Department sources and was last...
Both a straightforward Murabaha and a commodity Murabaha can be arranged either for a one-off deal or set up as a revolving facility, allowing multiple deals to be undertaken under a single umbrella. In each case, the documentation sets out the core mechanics for entering into transactions. For revolving arrangements, however, the customer (the Customer) and the financier (an Islamic financial institution ( IFI)) typically conclude a master agreement, which governs the fundamental terms of their subsequent dealings, while the specifics for any particular trade are confirmed at the point of execution. In look and effect, this echoes familiar conventional products, including the revolving loan facility and the note purchase facility. Across these structures, a customer may seek a transaction (whether a sale transaction, a loan, or a note issuance, as applicable) by reference to the baseline terms in the...
This Practice Note offers a concise overview of intercreditor agreements and their key provisions. This Practice Note: sets out why an intercreditor agreement is used and when it is chosen instead of a deed of priority or a subordination deed directs you to practical material on preparing and negotiating an intercreditor agreement effectively identifies the principal parties involved in an intercreditor agreement explains the core provisions commonly included in an intercreditor agreement, such as the following: ranking and subordination restrictions on payments to junior creditors amendments and variations to transaction documents limits on commencing enforcement action control of the security enforcement strategy release of claims on...
This Practice Note examines the principal tests for when a finance lease exists and outlines its core characteristics. It also highlights the main advantages of a finance lease. This Practice Note should be read alongside the notes on operating leases (see Practice Notes: Operating leases and Lease finance structures) and on alternative leasing structures (see Practice Note: Alternative leasing structures). Characteristics of a finance lease FRS 102 The Financial Reporting Standard applicable in the UK and Republic of Ireland defines a finance lease as one that transfers substantially all the risks and rewards incidental to ownership. This threshold is typically met where lease rentals payable for the asset mean the lessee covers the lessor’s full cost of supplying the asset and the lease term broadly aligns with the asset’s entire useful life. Accordingly, where those conditions hold, the arrangement is ordinarily regarded as one that...
Lenders commonly take security to back a borrower’s duties under a loan. Granting security gives them specific rights over the secured property if the borrower does not repay. A mortgage is one of the four categories of security recognised by English law; for further detail, see Practice Note: Types of security. This Practice Note explains: what a mortgage is how a mortgage differs from a charge the distinctions between a legal mortgage and an equitable mortgage which assets can be mortgaged how assignments by way of security interact with mortgages Practice Note: Introductory guide to security in a lending transaction provides broader information on security in loan transactions. It covers what security is and why lenders take security, who can provide security and over what kinds of assets, the types of security available under English law, why and how security is perfected, and the steps lenders can take to...
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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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