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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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Boilerplate provisions in public sector contracts This Practice Note examines key clauses on payment of subcontractors within public sector contracts. For further guidance on what contracting authorities (and other interested parties) should understand when deploying boilerplate terms in public sector agreements, consult Practice Note: Boilerplate provisions in public sector agreements: general considerations. Public procurement reform Procurement Act 2023 ( Commencement No 3 and Transitional and Saving Provisions) ( Amendment) Regulations 2024 ( SI 2024/959). The Procurement Bill secured Royal Assent on 26 October 2023, becoming the Procurement Act 2023 ( PA 2023). See: Procurement Bill [ HL]— LNB News 12/05/2022 14, and Procurement Bill receives Royal Assent— LNB News 26/10/2023 81. From 24 February 2025, the principal provisions of the PA 2023 are now operative. Accordingly, procurements started on or after that date must proceed in accordance with PA 2023. The pre-existing public procurement regime...
This Practice Note serves as a reference when assessing whether to include a product or service in a television or radio programme in exchange for consideration. It addresses the Ofcom Broadcasting Code (the Code), which prescribes the rules governing what products may appear, the programme genres in which placement is allowed, and the manner in which such items can feature. The rules on product placement in television broadcasts sit in Section 9 of the Code. Ofcom has also issued guidance on these provisions, but that guidance is currently being revised. An archived version for Section 9 can be accessed via the National Archives; however, it does not reflect the rules now in force. Product placement is one form of commercial advertising within television and radio content regulated by Ofcom. For advertising outside television or radio content, see Practice Note:...
This Practice Note sets out the exposures producers face regarding their responsibility to members of the public for hazardous or sub-standard products placed on the Great Britain market, and the measures that producers can adopt to control that risk. Risks Any business supplying consumer goods (or items that could end up in a consumer’s hands) must be alert to current legislation and common law remedies, and to the dangers it confronts if a product fails to work properly or creates a risk to users or other members of the public. End-users who buy dangerous or sub-standard goods may be able to bring claims: for breach of contract against the seller under the Consumer Rights Act 2015 ( CRA 2015) directly against a manufacturer under a product guarantee where there is personal injury or damage to property other than the product...
STOP PRESS: From 24 February 2025, the principal elements of the Procurement Act 2023 ( PA 2023) take effect. Competitions commenced on or after that date must follow PA 2023, while procedures started under the earlier framework—the Public Contracts Regulations 2015 ( PCR 2015), the Utilities Contracts Regulations 2016, the Concession Regulations 2016, and the Defence and Security Public Contracts Regulations 2011—must continue to be run and overseen in line with those rules. For an overview, see Practice Note: Introduction to the Procurement Act 2023— PA 2023. PCR 2015 as assimilated law PCR 2015 are EU-derived domestic legislation and therefore constitute assimilated law under sections 2 and 6 of the European Union ( Withdrawal) Act 2018. For practical guidance on the standing and interpretation of assimilated law, see Practice Note: Assimilated law. Public procurement reform The UK public procurement framework stems from EU procurement law and, while...
As outlined in The economic torts—overview, the law provides protection for a person’s trade or business against conduct regarded as unacceptable in a commercial context. For guidance on claims concerning: the tort of intentional violation of the claimant’s rights in a judgment debt—see Practice Note: The Marex tort (interference with a judgment debt) unlawful interference—see Practice Note: Economic tort of unlawful interference conspiracy, whether by lawful or unlawful means—see Practice Note: Civil conspiracy claims (economic tort) matters founded on unconscionable and intimidating conduct—see Practice Note: Economic duress—undue influence—tort of intimidation This Practice Note addresses the economic tort of procuring a breach of contract (also termed inducing a breach of contract, and sometimes described as ‘interference with contractual relations’). Civil claims involving allegations of fraud and dishonesty frequently proceed by pleading one or more of the economic torts; see Practice Note: Civil...
STOP PRESS: As of 24 February 2025, the key provisions of the Procurement Act 2023 ( PA 2023) are now in force. Procurements initiated on or after this date must follow PA 2023, while those commenced under the earlier framework—the Public Contracts Regulations 2015 ( PCR 2015), the Utilities Contracts Regulations 2016, the Concession Regulations 2016, and the Defence and Security Public Contracts Regulations 2011—must continue to be delivered and overseen under that legislation. See Practice Note: Introduction to the Procurement Act 2023— PA 2023. PCR 2015 as assimilated law PCR 2015 are EU-derived domestic legislation and therefore comprise assimilated law under sections 2 and 6 of the European Union ( Withdrawal) Act 2018. For practical guidance on the status and construction of assimilated law, see Practice Note: Assimilated law. Public procurement reform The UK public procurement regime originates from EU procurement law and was...
Money laundering offences—an introduction Money laundering describes the disguising of criminal proceeds as assets that seem legitimately derived, enabling permanent retention or their channelling back into further unlawful ventures. It follows a prior acquisitive offence (the predicate crime), with the profits processed either by the offender or by another acting for them. The Proceeds of Crime Act 2002 ( POCA 2002) creates the core laundering offences, discussed in greater depth below. Liability can also arise for those who, within the anti-money laundering framework, fail to identify, discourage, stop or disclose substantive laundering activity. These failures are criminalised under POCA 2002 and through secondary legislation. For further detail, see Practice Note: Money laundering offences—failure to disclose offences and Anti-money laundering and counter-terrorist financing offences—overview. Corporate criminal liability extends to organisations where the wrongdoing is committed by a body corporate, a...
This Practice Note outlines the common law doctrine of privity of contract; the equitable and statutory exceptions to it; how the doctrine bears on enforcing a contract against a non-party; and what occurs where, despite no privity, a contract has an indirect impact on a third party. For guidance on contracts and third parties more broadly, and on the Contracts ( Rights of Third Parties) Act 1999 ( C( RTP) A 1999), see the following Practice Notes: Contracts and third party rights Third party rights—the Contracts ( Rights of Third Parties) Act 1999 What does privity of contract mean? ‘ Privity of contract’ is a common law doctrine that provides a person cannot: enforce the benefit of a contract to which they are not a party, or be liable for any obligation under such a...
Introduction This Practice Note is part of our student series for those undertaking the LLB. It charts the development and contemporary operation of the doctrine of privity, opening with the orthodox common law stance and its conceptual underpinnings, including the connection between privity and consideration. It reviews the doctrine’s evolution, operation and reform, then assesses principal judicial techniques used to mitigate its rigidity—collateral contracts, agency, trusts of a promise, restrictive covenants and routes to recover third-party loss—illustrated by leading cases. The Note then considers the statutory reform in the Contracts ( Rights of Third Parties) Act 1999, setting out the structure and interpretation of sections 1(1)–1(6), including the identification requirement in section 1(3), with key authorities. It highlights when clearly identified third parties may enforce contractual terms, and how the Act maintains certainty and party autonomy. A consolidated case table and...
What is sustainable procurement? Per the UN Global Marketplace, procurement is considered sustainable when requirements, specifications and criteria are built in that align with and advance environmental protection, social progress, and economic development, notably by driving resource efficiency, enhancing the calibre of goods and services, and, in the end, reducing costs. ISO 20400 on Sustainable Procurement describes it as ‘procurement that has the most positive environmental, social and economic impacts possible over the entire life cycle.’ For added detail on ISO 20400, see below in this Practice Note: The use of standards in sustainable procurement. In short, sustainable procurement means weaving environmental, economic and social factors into supply chain due diligence processes and contract terms, with the objective of encouraging suppliers to provide more sustainable offerings. It requires assessing how a product or service affects the environment and society across its full...
THIS PRACTICE NOTE APPLIES TO OCCUPATIONAL AND PERSONAL PENSION SCHEMES The nature of an outsourcing Outsourcing arises where an organisation contracts with a third party to assume responsibility for delivering services that its own staff presently perform under the organisation’s direction. In almost all cases, employees’ contracts of employment move automatically to the service provider as part of the arrangement. A common illustration is a company (the Customer) handing over its IT function to a specialist firm (the Supplier) under an outsourcing deal. In that scenario, the Supplier undertakes to supply IT services to the Customer, with the Customer’s current IT team transferring to the Supplier. The automatic movement of employment can give rise to pension issues and related matters. This is pertinent on a first-generation outsourcing and when the service provider changes during the arrangement. Pension issues may emerge on...
Outsourcing agreements Outsourcing agreements are typically long-term, highly complex and high-value arrangements for services critically essential to the customer’s business. There are several reasons why termination rights in such agreements attract particular and careful scrutiny, especially when contrasted with simpler, shorter-term contracts. For example: it is very often hard for the customer to replace the supplier at short notice. The services delivered are usually tailored to the customer’s specific requirements, with an initial period of transitioning prior to service commencement. If the supplier were able to terminate on very short notice, then the customer could well be left without a critical business function; and the supplier will have forecast a long-term revenue stream for at least the agreed contract term and may not be able to recover all of its costs if the arrangement ends early The termination rights each party can obtain will...
Practice Note overview This Practice Note is a practical ‘how to’ on novating commercial contracts and directs readers to related materials. It covers: a summary of novation how novation differs from assignment when novation is the suitable route the elements needed for a valid novation other legal issues to consider practical tips for novating an agreement Sometimes, instead of simply assigning the benefit of an agreement to a third party, the original parties also wish to transfer their obligations and responsibilities. That outcome can be achieved by novating the contract. For fuller guidance on the law around contractual novation, see Practice Note: Novation—why and how to novate a contract. For a practical, detailed checklist when you need to novate an agreement, see: Drafting and negotiating a...
This Practice Note sets out guidance on the limitation periods for breach of contract claims under the Limitation Act 1980 ( LA 1980). It should be read alongside the following Practice Notes: Limitation Act 1980—general application, which details the core principles for calculating limitation periods pursuant to LA 1980, including when time begins to run and when it stops Limitation—the principal limitation periods, which provides an overview of the key limitation periods for disputes. In addition to high-level material relevant to breach of contract claims, it may assist with other claims that could apply concurrently on the facts For more general guidance concerning breach of contract and debt claims, see: Contractual breach damages and remedies—overview Debt...
This Practice Note seeks to clarify what is meant by ‘jurisdiction’ in the context of cross-border disputes arising in litigation before the courts and related procedural matters. It sets out why identifying the proper forum matters and how the courts of England and Wales (the English courts) assess whether they have authority to hear a given claim or determine a specific dispute. Several jurisdictional regimes may govern, and pinpointing the correct one can be challenging in practice from the outset. Even after selecting the relevant regime, working through its scope and operation is not always straightforward, both procedurally and substantively, in application and practice. This Practice Note assists by identifying the principal regimes and addresses related matters, including jurisdiction agreements, a defendant’s domicile, staying proceedings in favour of a competent court, or seeking a declaration that a court lacks...
An intention to create legal relations is required A court may conclude that an agreement is not enforceable even where consideration is present, because the parties lacked any intention to be legally bound (see, eg, Blue v Ashley). Did the parties intend to create legal relations—a question of fact Whether the parties possessed the necessary contractual intention is a factual matter, determined by the particular facts of the case. That said, the authorities accept that, in certain contexts, there is a presumption that such intention is missing. Proving the intention to create legal relations—express agreements In a typical commercial setting, it is generally unnecessary to prove that the parties to an express arrangement actually intended to create legal relations. In the absence of contrary evidence, the law presumes that they did. The burden of establishing that no legal effect was intended falls on the party asserting that...
STOP PRESS: From 24 February 2025, the key provisions of the Procurement Act 2023 ( PA 2023) have commenced. Any procurement launched on or after this date must follow PA 2023, while procurements initiated under the earlier framework—the Public Contracts Regulations 2015 ( PCR 2015), the Utilities Contracts Regulations 2016, the Concession Regulations 2016, and the Defence and Security Public Contracts Regulations 2011—must continue to be conducted and overseen under those rules. Refer to Practice Note: Introduction to the Procurement Act 2023— PA 2023. PCR 2015 as assimilated law PCR 2015 are EU-derived domestic legislation and therefore constitute assimilated law under sections 2 and 6 of the European Union ( Withdrawal) Act 2018. For practical guidance on the status and interpretation of assimilated law, see Practice Note: Assimilated law. Promoting sustainable development via public...
This Practice Note explores the operation of the Hague Convention on Choice of Court Agreements when jurisdictional questions arise in practice. It reviews the varieties of jurisdiction clauses and assesses whether they fall within the Convention’s scope. It then explains the duties placed on the court named in an exclusive jurisdiction clause (the chosen court), together with the responsibilities of courts seised where they are not the designated forum (non‑chosen courts). The Practice Note also addresses the availability of anti‑suit injunctions under the Convention and how the Convention is applied in disputes involving multiple parties and interests. It should be read in conjunction with Practice Notes: Hague Convention on Choice of Court Agreements—application by contracting states and Hague Convention on Choice of Court Agreements (jurisdiction and enforcement)— Brexit considerations. An explanatory report on the Hague Convention on Choice of Court...
This Practice Note is a ‘how to’ guide on executing simple contracts which signposts relevant content. It offers an overview of what is needed for effective execution, from initial checks, to signposting the formalities for different types of entity, alongside further legal factors and hands-on tips for signing a contract. While many agreements need not be written, some do; and, as a rule, putting terms into a signed document is advisable to promote certainty, deal with points raised in bargaining, and set out the bargain reached. For broader, introductory help on executing simple contracts, with pointers to related materials, see also Practice Note: Executing documents—deeds and simple contracts. We have assembled a collection that serves as a thorough, interactive tool to support users in spotting and navigating the concepts and recurring issues that arise on document execution. Each stage or step contains...
The Basics— Q& As This Practice Note presents Q& As on practical execution issues across the principal aspects of signing documents in commercial transactions. Authority to execute Executing contracts Executing deeds Counterparts Dating Witnesses Mistakes in executing documents Authority to execute How can a person who is not a director be formally authorised to sign contracts for a company? May a non-director manager execute a simple contract for the company, and what proof of authority is needed? What documentation should be obtained to confirm the status and authority of someone signing a deed as a partner for a general partnership? Can the Head of Finance of one group company execute contractual documents for another company in the same group, and what formalities ensure the signature is valid? May a third party rely on...
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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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