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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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This Practice Note is a practical ‘how to’ on delivering a compliant B2C direct digital marketing campaign, signposting related resources. It outlines what digital marketing entails, the legal framework for campaigns carried out entirely by digital means, and the key considerations and processes for advertisers, publishers and traders before sending digital marketing communications directly to consumers. Regulation 2 of the Privacy and Electronic Communications ( EC Directive) Regulations 2003 ( PECR 2003), SI 2003/2426, defines ‘direct marketing’ as ‘the communication (by whatever means) of advertising or marketing material which is directed to particular individuals’. This Note does not explore the overarching principles of direct marketing, but instead concentrates on matters specific to the digital sphere. For guidance on fundamentals, and how to run print or telephone activity, see Practice Note: How to run a compliant direct marketing...
This Practice Note outlines the law governing the use of boilerplate provisions in business-to-consumer ( B2C) contracts. In addition to summarising the Consumer Rights Act 2015 ( CRA 2015), which polices unfair terms in B2C agreements, it also considers the Competition and Markets Authority guidance ‘ Unfair contract terms: CMA37’ ( CMA Guidance). For analysis of particular boilerplate terms used in B2C arrangements—adjudication, alternative dispute resolution ( ADR), arbitration, assignment, definitions and interpretation, entire agreement, force majeure, governing law, jurisdiction, variation and waiver—see Practice Note: Boilerplate clauses in business-to-consumer contracts—specific clauses. For wider material on standard terms and conditions in B2C contracts, see the following Practice Notes: Consumer standard terms and conditions—the business context Consumer standard terms and conditions—the advertising and marketing context Consumer standard terms and...
ARCHIVED : This Practice Note has been archived and is not maintained This Practice Note reviews the rules for identifying the applicable law, also described as governing law, as they operate between the UK’s exit from the EU on 31 January 2020 and the conclusion of the implementation period, which the EU refers to as the transition period. It addresses whether the implementation period can be extended, whether the applicable law frameworks in Regulation ( EC) 593/2008, Rome I, and Regulation ( EC) 864/2007, Rome II, continue to apply during that period, and what is expected at its end. For a quick reference Brexit research aid answering key questions on Brexit and offering useful Brexit updates, research tips and resources, see: Brexit Bulletin—key updates, research tips and...
Product liability, safety and corrective actions & recall—key resources This Practice Note gathers the principal resources on product liability, product safety and product corrective actions & recall. It explains the UK position, signposts EU materials to indicate where UK law originates from EU law (assimilated law), identifies post- Brexit divergence between UK and EU regimes, and describes the hybrid arrangement in Northern Ireland. product liability product safety product corrective actions product recall other statutory safety controls market surveillance standards conformity marking labelling For a high-level comparison of UK and EU product regulation, see Practice Note: Product regulation— UK/ EU comparison. Assimilated law is the term for retained EU law ( REUL) that remains in force after the end of 2023. Reclassification of REUL as assimilated law marks a change to its status and treatment under UK law, in that it is...
Embedding sustainability This Practice Note considers supply chain sustainability through the wider lens of sustainable procurement and environmental, social and governance ( ESG) performance, concentrating on leading themes in UK and EU private sector practice. It offers practical direction on setting up a supplier code of conduct and building a comprehensive supply chain sustainability programme that addresses: Human rights and labour standards Environmental impacts and deforestation Corruption and litigation exposure Risk management across the supply chain Public procurement sits outside the scope of this note. For further information on supply chain sustainability in the UK, including details on UK regulations, see Practice Note: Supply chain sustainability— UK. For further information on supply chain sustainability in the EU, including details on EU regulations, see Practice Note: Supply chain sustainability— EU. For further information on sustainable public procurement in the UK, see...
Design rights before and after Brexit The aim of this Practice Note is to provide a concise overview of the different UK design rights available both before and after Brexit. In brief, the UK’s departure from the EU means that, from IP completion day (11.00 pm on 31 December 2020), the UK stopped being subject to the EU design framework, which at that time covered registered Community designs ( RCDs) and unregistered Community designs ( UCDs). The UK is excluded from the territorial scope of those unitary rights (and from international design registrations designating the EU) and is no longer bound by Regulation ( EC) 6/2002. Consequently, the UK implemented arrangements under which the proprietor of an RCD or a UCD on IP completion day automatically became the owner of an equivalent UK design right. Designs safeguarded as RCDs were cloned into a new UK right...
Updated December 2025 Introduction The United Arab Emirates ( UAE) sits at a pivotal juncture between leading Western and Eastern markets. Formed as a constitutional union of seven Emirates, each maintains its own local authority, while overarching governance rests with the Supreme Council and the Council of Ministers. As part of the Gulf Cooperation Council ( GCC), the UAE participates in the Middle East’s sole multi-national common market, aimed at deepening cross-border economic and fiscal cohesion. Investing and trading in the UAE offers a broad spectrum of prospects for investors. This Practice Note highlights principal considerations for overseas organisations entering the UAE and the essential actions to commence operations. It concentrates on establishing in Mainland UAE, the Abu Dhabi Global Market ( ADGM), and the Dubai International Financial Centre ( DIFC). Although these jurisdictions are covered in depth, investors can also assess many...
Under the Transfer of Undertakings ( Protection of Employment) Regulations 2006, SI 2006/246 ( TUPE), a move of an undertaking from one organisation (the transferor) to another (the transferee) can arise in several situations, such as: a business sale at the beginning or the end of an outsourcing an internal reorganisation within an employer’s group (where the employing entity changes) a management buy-out the establishment or ending of a franchise These are circumstances in which TUPE may operate in practice. For further information, see Practice Note: TUPE—an overview for pensions lawyers. Considerations relevant to determine level of pension provision post- TUPE transfer When determining the pension benefits a transferee employer must make available to staff who move across, the transferee should assess the minimum pension provision it is legally obliged to put in place for those...
THIS PRACTICE NOTE APPLIES TO OCCUPATIONAL AND PERSONAL PENSION SCHEMES Automatic statutory transfer of terms and conditions of employment In private sector outsourcings, staff moving to a Supplier must continue on the same contractual terms after the handover as applied beforehand, in line with the Transfer of Undertakings ( Protection of Employment) Regulations 2006, SI 2006/246 ( TUPE), save that a specific pensions exception applies in practice. Which benefits fall within the pensions exception?......
FORTHCOMING DEVELOPMENT : Section 10 of the Finance Act 2022 will increase the normal minimum pension age ( NMPA) from 55 to 57 on 6 April 2028 (save for members of the firefighters, police and armed forces public service pension schemes). It will additionally grant members of registered pension schemes the ability to draw benefits before turning 57 where, on or before 4 November 2021, they already held an unqualified right to take benefits, or were progressing a substantive transfer to a scheme that, on or before 4 November 2021, provided an unqualified right to a protected pension age below 57. To rely on the new 2028 protection, the scheme’s rules must, on 11 February 2021, have contained an unqualified right to access benefits before age 57. For more detail, refer to Practice Note: Increasing the normal minimum pension age ( NMPA) to...
This Practice Note This Practice Note addresses what is meant by a transfer of an undertaking, a transfer of a business, and a transfer of part of an undertaking or business within regulation 3(1)(a) of the Transfer of Undertakings ( Protection of Employment) Regulations 2006 ( TUPE 2006), SI 2006/246. It analyses the core components of an economic entity and the retention of identity—namely, whether that entity preserves its identity post-transfer—together with organised groupings of resources, whether a single employee can amount to an undertaking, the requirement for stability (a stable economic entity), and illegal purposes. It also considers how to determine if a relevant transfer occurs, transfers achieved through a series of transactions, the date on which the transfer takes place, share sales, intra-group transfers, the ‘going concern’ test ( Spijkers), temporary cessation of activities, the transfer of part of a business or...
This Practice Note provides guidance on how the Transfer of Undertakings ( Protection of Employment) Regulations 2006 ( TUPE 2006), SI 2006/246 apply to public sector transfers It summarises the policy and guidance that sit alongside TUPE 2006 to safeguard public sector workers’ pensions, and addresses: Exceptions for administrative reorganisations of public administrative authorities, and the movement of administrative functions between such authorities Transfers within central government, the effect of the Cabinet Office Statement of Practice ( COSOP), and TUPE‑equivalent protection Shifts from public to private sector, the Two‑ Tier Code ( Wales), Principles of Good Employment Practice, and Good Practice for managing the consequences of outsourcing and privatisation Fair Deal policy, Best Value Authorities, the Best Value Direction, and Quality Contracts Schemes It further explains that EU‑derived provisions, including much of TUPE 2006 made to meet the UK’s...
This Practice Note sets out the avenues open to a business seeking to recoup an unpaid trade debt. The available routes include writing-off the balance, brokering a settlement, invoking retention of title or set-off rights, commencing insolvency processes (for example, a statutory demand or a winding-up petition) and issuing court proceedings. It serves as an introduction to these options for commercial practitioners. Before selecting a recovery route, a creditor should reflect on several preliminary matters, including: whether the sum has fallen due and is payable (including whether any contractual preconditions to payment have been met) whether the debt is uncontested or subject to a genuine dispute or counterclaim whether any limitation period is nearing expiry or has already expired the debtor company’s financial condition and capacity to pay whether the creditor benefits from any security, guarantees or...
This Practice sets out practical illustrations of how the Contracts ( Rights of Third Parties) Act 1999 ( C( RTP) A 1999) operates, addressing group liability and the defences to third party claims under C( RTP) A 1999. For wider guidance on the general operation of the Act, see Practice Note: Third party rights—the Contracts ( Rights of Third Parties) Act 1999. Rights and liabilities arising in contracts involving group structures For advice on construing contracts to assess whether benefits have been conferred on a third party for the purposes of C( RTP) A 1999, s 1(1)(b), see Practice Note: Third party rights—the Contracts ( Rights of Third Parties) Act 1999. A typical group supply arrangement might be structured as follows. Parent Supplier ( PS) agrees with Parent Customer ( PC) that: PS will provide raw materials to PC PS will also provide raw...
The creation of the Competition and Market Authority ( CMA) in 2013 The establishment of the Competition and Market Authority ( CMA) in 2013 coincided with an overhaul of a component of the criminal cartel offence that prosecutors had to prove to convict directors and officers. When the Enterprise and Regulatory Reform Act 2013 ( ERRA 2013) commenced on 1 April 2014, the dishonesty element of the cartel offence was scrapped, marking a radical change to what prosecutors had previously been required to establish. Under the revised regime, an individual commits the offence by agreeing, with one or more persons, that two or more undertakings will take part in specified prohibited cartel arrangements (price-fixing, market-sharing, bid-rigging, or limiting output), regardless of dishonesty. Any such arrangements must have occurred in the UK to be caught. As explained further below, this shift is partly offset by new...
This Practice Note explores the purpose and scope of the British Franchise Association (the BFA) within the UK franchising industry. It reviews the legislative and regulatory environment of the sector, together with the BFA’s membership requirements, its Code of Ethical Conduct, the BFA’s complaints and appeals procedures, the sanctions the BFA may apply to its members, and the BFA’s relationship with the European Franchise Federation... Role and remit The BFA was established in 1977 to evaluate and accredit franchising businesses operating in the UK. As set out in its Articles of Association, the BFA’s objectives are to: advance the interests of franchisors secure adherence to its Code of Ethical Conduct provide guidance on all franchising enquiries build trust and confidence in BFA-accredited franchises deliver education and training in relation to franchises, and enhance efficiency and economy in...
This Practice Note covers how the Commercial Agents ( Council Directive) Regulations 1993, SI 1993/3053 (the Commercial Agents Regulations) govern the termination of a commercial agency arrangement It also sets out a commercial agent’s entitlement to receive compensation or, alternatively, an indemnity when the agency is brought to an end. The Note examines how compensation and indemnity can be assessed on termination under the Commercial Agents Regulations, as well as the situations in which neither compensation nor an indemnity will be payable... The Commercial Agents Regulations took effect on 1 January 1994, giving effect to Council Directive 86/653/ EEC ( OJ L 382/17), the EU Commercial Agents Directive. Although founded on EU law, the Regulations were preserved by the European Union ( Withdrawal) Act 2018 (as amended) from 11 pm on 31 December 2020 ( IP completion day). They were not revoked by the...
Scope of this Practice Note This Practice Note addresses preparing a contract termination notice for breach, together with, where suitable, a without prejudice offer letter to resolve any claim stemming from the termination. It pinpoints the principal issues to assess and explains, in detail, the context underpinning the drafting of each of our bespoke termination notice Precedents and the context behind them. It also considers multiple bases for terminating, and the choice between relying on an express contractual right to terminate or proceeding at common law for repudiatory breach when both avenues exist, ensuring your termination notice is valid and evaluating whether, if deemed appropriate, to enclose it with an offer to settle any liability arising from the breach. For guidance on using our related bespoke notice of breach Precedents, see Practice Note: Drafting notices of breach of...
This Practice Note explores how a distribution agreement may come to an end, covering rights to terminate under common law on notice, for breach, or by invoking express termination clauses in the contract itself. It gives guidance on termination for breach of contract and on serving effective notice to bring a distribution agreement to a close. It also examines the termination rights that might be set out in a written distribution agreement, the consequences of termination, and whether duties persist afterwards, including confidentiality commitments and post-termination restraints. Distribution agreements, like other commercial dealings, are not designed to endure forever. They should continue only while both parties derive mutual benefit and the arrangement remains compliant with applicable legislation. A well thought-through commercial arrangement should foresee that, once it no longer has a commercial rationale, it will need to be terminated. The legal route to...
Term and termination This Practice Note outlines a range of approaches to drafting term and termination clauses in commercial contracts for business-to-business ( B2B) dealings. It explores how express contractual provisions align with common law rights concerning the length and ending of contracts, offers practical guidance on preparing term and termination clauses, and highlights the principal issues to address in negotiations. Where an agreement is silent on duration or ending, if a dispute arises, the courts will apply common law principles to discern the parties’ intentions. To reduce uncertainty, it is typical to include express clauses that set out the duration and termination of a contract. As a rule, contractual rights to terminate are additional to, and not a replacement for, common law rights. This Practice Note concentrates on contractual terms dealing with duration and termination in a general commercial context, why they warrant...
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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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