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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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The key United States ( US) regulators and regulations that govern structured products and securitisations issued outside the US are summarised below. Regulatory bodies Securities and Exchange Commission ( SEC) The SEC, a federal agency, is responsible for the principal US securities laws: the Securities Exchange Act of 1934, the Securities Act of 1933, the Trust Indenture Act of 1939, the Investment Companies Act of 1940, the Investment Advisers Act of 1940 and the Sarbanes- Oxley Act of 2002. Established by the 1934 Act after the 1929 Wall Street crash, it regulates securities markets and stock exchanges, can bring civil actions for breaches of its rules, and may pursue criminal prosecutions alongside law enforcement agencies. Commodity Futures Trading Commission ( CFTC) The CFTC, an independent federal agency, regulates futures and option markets. Its role is to protect market users and the public from fraud,...
This Practice Note sets out essential tips for advising a client weighing a liability management transaction. Amid recurring market swings, issuers across numerous sectors periodically assess options such as debt buy-backs, tender or exchange offers, and consent solicitations. Such transactions enable an issuer to refinance or reorganise outstanding obligations and, in certain circumstances, to satisfy accounting, regulatory, or tax aims. The potential advantages can be considerable, ranging from signalling confidence to the market to avoiding more drastic measures. Extending debt maturities Recognising an accounting gain Deleveraging Securing possible regulatory capital benefits Enhancing financing flexibility Potentially forestalling a deeper restructuring or bankruptcy Demonstrating a positive outlook in an uncertain market environment Selecting the most suitable liability management route is critical, requiring issuer and counsel to weigh multiple considerations, as outlined below. Deciding between repurchases, tender or exchange offers, and consent solicitations will turn on the issuer’s objectives,...
This Practice Note offers an introduction and addresses matters concerning its scope of application. It sets out best practice guidance on helping your clients meet FCPA requirements, including establishing and running an effective anti‑corruption compliance programme within their organisations. The Practice Note also outlines current FCPA enforcement patterns. For organisations operating across borders, it is crucial that they grasp their duties and constraints under the FCPA. As enforcement intensifies and regulators gain unprecedented visibility into the transactions themselves, informing organisations about the FCPA is a highly valuable professional service lawyers can deliver. For further detail on the FCPA, see Practice Notes: Practical steps in a bribery investigation— UK and US perspectives and The US Foreign Corrupt Practices Act 1977 ( FCPA 1977) and Bribery Act 2010 ( BA 2010) comparison table, as well as: Best practices in FCPA...
This Practice Note presents a comparison table outlining the differences and similarities between the US Foreign Corrupt Practice Act 1977 ( FCPA 1977) and the UK Bribery Act 2010 ( BA 2010). For details on the UK BA 2010, see Practice Note: The Bribery Act 2010—an introductory guide. For material on the US FCPA, see Practice Note: US Foreign Corrupt Practices Act ( FCPA). For information on international co-operation and co-ordination between the US and the UK, together with the main considerations when investigating and enforcing potential FCPA breaches, see Practice Note: FCPA internal investigations and enforcement proceedings ( US)... Key aspects US Foreign Corrupt Practice Act 1977 Who does the Act apply to? US companies (incorporated or not), US residents and non-residents acting within the US, US...
STOP PRESS : The Financial Choice Act, approved by the US House of Representatives in June 2017, aims in substantial measure to roll back numerous restrictive elements of the Dodd- Frank Act, among them the Volcker Rule. In the wake of that vote, the US Treasury issued a 150-page document (‘ Treasury Report’) for President Donald J. Trump, reviewing the United States’ financial regulatory architecture and setting out executive steps and rule changes that could be implemented swiftly and promptly without delay to ease the burden on firms......
This Practice Note outlines the US laws, regulations and supervisory bodies most pertinent to international issues of debt securities outside the US, and covers—(1) Rule 144A, (2) Regulation S, (3) the TEFRA C and D Rules, (4) 10b-5 letters, (5) the Securities and Exchange Commission, (6) the Commodity Futures Trading Commission, (7) the registration and reporting obligations for foreign private issuers that issue securities, or seek a secondary public trading market for their securities, in the US, and (8) state securities (blue sky) laws. Introduction The US provisions most relevant to international issues of debt securities outside the US are: the exemptions available under Rule 144A and Regulation S of the Securities Act of 1933 (the Securities Act); and US Treasury Regulations section 1.163 5(c)(2)(i)( C) and ( D) ( TEFRA C and D Rules). The US regulatory authorities with greatest relevance to...
ARCHIVED: This Practice Note is archived and is no longer maintained. This Practice Note examines the particular questions that can emerge when the parties are bound by a contract yet a potential claim in unjust enrichment might also be in play. In that situation, scope for pursuing unjust enrichment in the presence of an ongoing contractual arrangement is narrow, as outlined below. In addition, any party must still meet the general prerequisites for bringing an unjust enrichment claim as set out in Practice Note: Unjust enrichment—elements of the claim, and remain alert to any defences that could be advanced, as discussed in Practice Note: Unjust enrichment—defences. The relationship between unjust enrichment and contracts Claims seeking restitution for unjust enrichment are separate and different from actions in contract. The general rule is that, where a claimant and a defendant are linked by a...
What does this Practice Note cover? This Practice Note examines transactions that rely on the exemption from registration afforded by Rule 144A under the Securities Act of 1933, as amended (the Securities Act) (17 CFR § 230.144A). Both US and non‑ US issuers commonly use Rule 144A to conduct offerings of debt securities in the US without registering under the Securities Act. This Practice Note addresses: the requirements of Rule 144A; publicity considerations in Rule 144A offerings; Rule 144A and State Securities ( Blue Sky) Laws; and resales of securities issued in Rule 144A offerings. These subjects are discussed in the context of Rule 144A offerings. What is Rule 144A? Rule 144A allows issuers to raise large amounts of capital without incurring the cost and effort of Securities Act registration, and avoids the delay caused by the US Securities and Exchange...
Securities and Exchange Commission ( SEC) What is the SEC? Established by the Securities Exchange Act of 1934, the SEC came into being as that statute amended and reinforced the Securities Act of 1933, brought in after the 1929 stock market crash. Together, Acts sought to rebuild investor confidence in US capital markets by ensuring investors and the markets received more dependable information and clear, unambiguous rules for honest dealing. The SEC functions as an independent and autonomous government body responsible for supervising US securities markets, applying securities law, and overseeing exchanges that trade shares, options, and other securities......
Introduction and background From 1 November 2024, a refreshed UK securitisation regime took effect, annulling and supplanting the onshored EU legislative framework (the new UK framework). Although the new UK framework broadly preserves the substance of the prior onshored EU rules, notable policy shifts have been introduced. Nevertheless, there are material alterations in policy and emphasis to be aware of today too. Departing from the earlier approach, rule-making authority now sits with the Financial Conduct Authority ( FCA) and the Prudential Regulatory Authority ( PRA). This Practice Note highlights areas of divergence between the new UK framework and the current EU regime, notably scope, who qualifies as institutional investors, risk retention, transparency, due diligence and STS designation. It offers only a high-level overview of these points and is not an exhaustive catalogue of every present difference between the two regimes. As the new UK...
What are the key VAT issues for banks and financial institutions? For most businesses, the central VAT questions are: whether VAT ought to be applied to their supplies of goods and/or services; and whether any input VAT is recoverable. For banks and other financial institutions, these remain the core matters to resolve. However, further VAT considerations arise due to: the particular categories of supply they provide, namely the provision of financial services; and their diverse customer base, both by geographical location and by whether customers are businesses or consumers. For ease of reference, banks and financial institutions are collectively described as ‘banks’ in this Practice Note. Should banks charge VAT on their supplies?......
This Practice Note examines key aspects of the UK UCITS regulatory regime, covering the authorisation process, UK UCITS management companies, master–feeder structures, depositaries, remuneration, investment information, and UK implementation and areas of UK divergence following the UK’s withdrawal from the EU. What is the UCITS Directive and what is a UCITS fund? Within the EU, the UCITS Directive—also known as UCITS IV ( Directive 2009/65/ EC)—replaced the original UCITS Directive in 2011 ( Directive ( EEC) 85/611). The objective of the initial UCITS Directive was to build a single market for open-ended retail investment funds, offering improved investor protection. The final text of UCITS IV was published in the Official Journal of the EU (the OJ) on 17 November 2009, with EU Member States required to implement it by 1 July 2011. UCITS funds are authorised open-ended investment funds that may be marketed to retail...
What are trade sanctions? Trade sanctions are restrictions that curb, whether directly or indirectly, the import or export of goods, non-financial services, or technology, where these relate to, or are intended for use in or by, a specified country, region, or individual. The UK applies sanctions to fulfil several aims: supporting foreign policy and national security goals, safeguarding international peace and security, and countering terrorism. These sanctioning regimes are established under the Sanctions and Anti- Money Laundering Act 2018 ( SAMLA 2018) and cover the entirety of the UK, including Northern Ireland. For further information on SAMLA 2018, see Practice Notes: The UK sanctions framework under SAMLA 2018 and UK sanctions regimes currently in force......
This Practice Note: describes what a whole business securitisation is—sometimes referred to as an operating asset securitisation sets out the principal tax considerations that arise on a whole business securitisation because the companies involved sit within a broader corporate group, including that: it is customary for the wider corporate group to provide a tax deed of covenant (a tax covenant) in favour of the securitisation group in general, entities participating in the securitisation should not be members of a VAT group with companies that are outside the securitisation group (see further below) indicates how tax-effective hedging can be achieved where the issuer does not qualify as a note-issuing company for the permanent securitisation regime For a guide to the contents of a tax...
Tax is a key consideration when selecting an appropriate structure for holding UK commercial property. The prevailing route for investing in UK commercial property is typically a UK‑incorporated, tax‑resident limited company. Non‑ UK investors have also gravitated towards offshore ownership for investment, commonly via a non‑ UK resident special purpose vehicle ( SPV). Following reforms to the taxation of gains realised by non‑ UK residents on UK immovable property from 6 April 2019, and to the taxation of property income of non‑ UK resident companies from 6 April 2020, non‑ UK resident companies that hold UK commercial assets now fall within UK corporation tax on gains (subject to certain exemptions) and on rental income. As a consequence, a number of the core tax attractions of using non‑ UK resident SPVs to own UK commercial property have been curtailed....
ARCHIVED : This Practice Note has been archived and is no longer maintained. STOP PRESS: The Short Selling Regulations 2025 were made and published on 13 January 2025, together with an explanatory memorandum. These regulations replace the assimilated UK Short Selling Regulation and introduce a new legislative framework governing short selling in the UK, defining designated activities and empowering the Financial Conduct Authority ( FCA) to set rules for those activities, alongside powers to act in exceptional circumstances. Certain parts commenced on 14 January 2025, with the remainder starting on the date the revocation of the UK Short Selling Regulation takes effect under FSMA 2023. The UK’s new regime removes obligations on investors when entering short positions in sovereign debt or sovereign credit default swaps ( CDS) and the linked reporting requirements, while keeping sovereign debt and sovereign CDS within the FCA’s...
ARCHIVED : This Practice Note has been archived and is not maintained. STOP PRESS: The Short Selling Regulations 2025 were made and published on 13 January 2025, accompanied by an explanatory memorandum. The regulations supplant the assimilated UK Short Selling Regulation and set out a new and comprehensive legislative framework governing short selling in the UK, defining specific designated activities applicable to short selling and conferring upon the Financial Conduct Authority powers to make rules for those activities, together with authority to intervene as appropriate in exceptional circumstances. Certain provisions took effect on 14 January 2025, with the remaining provisions then commencing on the day the revocation of the UK Short Selling Regulation takes effect under the Financial Services and Markets Act 2023. For a summary of the background to the new UK regime, see The UK Short Selling Regulation— Review of the UK Short...
Short selling: the two key types The onshored Short Selling Regulation, Assimilated Regulation ( EU) 236/2012 (the UK Short Selling Regulation), applies in the UK and sets out the definition of short selling in Article 2. Put simply, it is a method where a trader agrees to sell a security they do not presently own, seeking to profit by selling first and, later on, buying the same security back at a lower price so it can be returned to the original holder. The strategy hinges on a subsequent repurchase at a reduced price to realise a gain. Short selling occurs in the cash equities markets, and there are derivative equivalents that mirror the effect. A short exposure can also be established using index futures, options, and spread bets, offering alternative ways to implement the view that prices may fall. In summary, there are two types of short...
This Practice Note surveys the various categories of ship registry operating worldwide before turning to UK ship registration processes, also covering who qualifies, the papers needed to record a vessel, renewal, and bringing an entry to an end on the UK Ship Register. Types of registry There are numerous forms of ship registry around the world, outlined below. Every shipowner must assess which kind of register is the best fit; the decision will typically turn on how restrictive each category is, together with the fees and any prospective tax or financial benefits available to the owner under each, with those limits, costs and advantages shaping the overall selection made. National registers These registers are found in nations such as Greece, often the more traditional maritime states......
Registration can have an important effect on the priority of competing security interests In broad terms, two registration frameworks exist: recording against the secured asset; and recording against the person granting the security This Practice Note deals with the former, where the collateral is a ship on the UK register. It provides a concise overview of the statutory regime for ship mortgages and then sets out how registration influences the ranking of competing security interests over vessels. For guidance on how filing against other asset classes affects priority, see the following Practice Notes: Effect of registering security at HM Land Registry or the Land Charges Department on priority of security interests Effect of registering security on the UK Register of Aircraft Mortgages on priority of security interests Effect of registering security at the IP registries on priority of security...
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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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