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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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Expert determination is a form of alternative dispute resolution ( ADR). This Practice Note outlines expert determination for technical or contract interpretation disputes. It describes the process, addresses how the parties agree to select or appoint the expert, and considers the expert’s jurisdiction. It also covers the binding effect of the expert’s decision, as well as procedure, limitation and potential claims against experts. For general guidance on ADR and other options, see the following Practice Notes: What is ADR? Which form of ADR? What is expert determination? Expert determination is a binding mechanism where an independent expert in the relevant discipline decides a dispute between parties in accordance with provisions they have agreed. It is most often used where an existing agreement provides for referral of a particular issue to an expert. It is especially suited to technical disputes, such as: Rent...
Under English law, binding agreements may arise orally, in writing, or by deed. This Practice Notice explores when a deed is required or preferable, and the formalities that must be observed to ensure validity. What is a deed? When a deed is required Formalities (1): in writing Formalities (2): face value Formalities (3): execution Formalities (4): delivery Escrow Witnessing Variation Failure to comply with formalities and other defects Reform For details on executing deeds in jurisdictions outside England and Wales, see Practice Note: Execution of deeds—jurisdictional guide. We have created a comprehensive, interactive collection to help users identify and navigate concepts and common issues in executing documents, including deeds. Each phase includes practical guidance, precedent clauses and Q& As relevant to that stage. For further information, see: Execution...
This Practice Note This Practice Note outlines the IP and competition law considerations that can surface around character merchandising (that is, licensing a character’s name or image for promoting goods or services, typically involving licences of trade marks and/or copyright) in the UK. It reviews matters arising under the Competition Act 1998 ( CA 1998). It discusses potential block exemptions and individual exemptions that could be relevant. It also explores how competition law intersects with the tort of passing off. Conceptually, linking a product or service with a character enhances its appeal in the marketplace. For licensors, beyond the royalties received, exploiting such character rights can be an essential tool for marketing and sponsorship. For a concrete illustration where IP rights were licensed for character merchandising, together with an examination of the strategic considerations, see News Analysis: What does the Barbie film mean for IP...
This Practice Note outlines the principal distinctions between mediation and litigation in England and Wales, alongside their likely benefits and drawbacks. What is mediation? Mediation is one of the most familiar and widely used forms of alternative dispute resolution ( ADR). It is a confidential procedure in which an impartial third party (the mediator) helps the parties work towards an agreed outcome to settle their dispute. For a summary of the process, see: Mediation—overview. In July 2021, the Ministry of Justice issued a ‘guide to a civil mediation’ explaining the advantages of civil mediation and how to identify a suitable mediator. Why consider mediation? There are many grounds for seeking a negotiated resolution, including: Preserving the commercial relationship between the parties Minimising the cost and duration of court proceedings Keeping the dispute confidential For general guidance on settling disputes, see Practice Note: Settling...
This Practice Note provides an overview of the agreement for the purchase of some or all of a company's assets (the APA). See Precedent: Asset purchase agreement—pro-buyer—corporate seller—conditional—long form. The APA sets out the terms upon which the purchaser agrees to acquire from the seller the assets comprising the target business (the Assets) and is the principal document in any asset purchase transaction. The purchaser agrees to pay the seller the purchase price for the acquisition of the Assets (the Consideration), and in exchange the seller conveys title to the Assets through the appropriate means, which will vary according to the nature of the asset. Some assets may pass by mere delivery and, for those, the APA alone can effect the transfer; other categories of asset will need further instruments to pass them to the buyer. Because only assets expressly identified in the APA will be...
Introduction This Practice Note sets out to familiarise readers with the principal ideas underpinning the law of marine insurance, noting where it coincides with, and where it diverges from, insurance law in general. The evolution of marine insurance in England, and the jurisprudence that accompanies it, can likely be followed back to the thirteenth century, when insuring ships and their cargoes emerged in step with growing maritime commerce. In origin, marine insurance law sprang from the carriage of goods and passengers by sea, extending to cover both property perils and liability exposures. The statutory definition of a marine insurance contract in section 1 of the Marine Insurance Act 1906 ( MIA 1906) is notably broad: an agreement under which the insurer promises to indemnify the assured for marine losses, namely losses arising out of a marine adventure. That expansive wording is developed further by MIA 1906,...
Delivery and acceptance of goods in business-to-business contracts This Practice Note reviews statutory requirements concerning the delivery and acceptance of goods under sale of goods contracts in a business-to-business setting. It signposts the principal provisions of the Sale of Goods Act 1979 ( SGA 1979) and examines frequent issues in such contracts, including when and where delivery should occur, what follows if goods are damaged during transit, and the circumstances in which buyers are treated as having accepted goods after delivery. For broader guidance on sale and supply of goods, see Practice Note: Contracts for the sale and supply of goods—business to business. For illustrative sale of goods agreements, with tailored terms on delivery, inspection and acceptance, see Precedents: Supply of goods agreement—pro-supplier, Supply of goods agreement—pro-customer and Supply of goods agreement—short form, together with their associated drafting notes. See also Supply of goods...
Advertising and marketing- Germany- Q& A guide [ Archived, 2021 edition] This Practice Note offers a Germany-focused Q& A on advertising and marketing, featured in the Lexology Getting the Deal Through series by Law Business Research ( October 2021). Authors: DLA Piper- Beatrice Brunn; Dr. Stefan Engels. 1. What are the principal statutes regulating advertising generally? Germany does not have a single, comprehensive advertising law. The Unfair Competition Act ( UWG) is the primary framework governing market behaviour, with specific relevance to advertising. Its purpose is to protect consumers, competitors and other market participants from unfair commercial practices. In addition, numerous sector-specific rules apply to the promotion of particular products and services, and across various communication channels. Certain professional guilds have also issued codes of conduct to preserve their integrity; these bind only their members. Further requirements or constraints may depend on the medium used....
The adtech and programmatic advertising tracker is comprised of the following sections: Legislation Bills in progress (when applicable) Acts in force Research and consultations undertaken by the UK government Regulatory action by: the Competition and Markets Authority ( CMA) the Information Commissioner’s Office ( ICO) Industry developments, including: IAB Europe, IAB Tech Lab and IAB UK Data and Marketing Association ( DMA) Incorporated Society of British Advertisers ( ISBA) ...
Advertising and marketing- Brazil- Q& A guide [ Archived, 2021 edition] This Practice Note provides a jurisdiction-specific Q& A on advertising and marketing in Brazil, issued within the Lexology Getting the Deal Through series by Law Business Research ( October 2021). Authors: IWRCF- Luiz Werneck; Talita Sabatini Garcia. 1. What are the principal statutes regulating advertising generally? the Brazilian Federal Constitution; the Consumer Protection Code ( Federal Law No. 8,078/90); the Statute of the Children and Adolescents ( Federal Law No. 8,069/90); the Brazilian Advertising Self- Regulation Code; Federal Law No. 5768/71; Decree No. 70,951/1972; Federal Law No. 5,768/71 and Decree No. 70,951/1972 regulate commercial promotions and sweepstakes; National Health Surveillance Agency resolutions. 2. Which bodies are primarily responsible for issuing advertising regulations and enforcing rules on advertising? How is the issue of concurrent...
Advertising and marketing- France- Q& A guide [ Archived, 2022 edition] This Practice Note presents a France-specific Q& A on advertising and marketing, issued within the Lexology Getting the Deal Through series by Law Business Research ( August 2022), and archived as the 2022 edition. Authors: Bernard- Hertz- Béjot- Michel Béjot; Caroline Bouvier 1. What are the principal statutes regulating advertising generally? Advertising is governed by legislation and related implementing instruments, including decrees and ordinances that give effect to statutory provisions. For example, Toubon Law No. 94-665 of 4 August 1994 mandates and oversees the use of the French language in all advertising. Decree No. 92-280 of 27 March 1992 sets out particular rules for television advertising. There is no single advertising code; instead, various sectoral codes contain provisions on advertising in France. For instance: the Consumer Code addresses both deceptive or misleading...
Other formalities- Q& As This Practice Note sets out Q& As on practical signing considerations concerning additional formalities that can arise when executing documents in commercial transactions. Notaries and notarisation May an English solicitor arrange legalisation of a notarial transfer deed governed by Dutch law? Verification of documents and information Oaths When giving an oath, must I check the deponent’s identity? Do you provide a certificate of translation as a Precedent? Statutory declaration Can a defective statutory declaration still take effect as a simple contract? Are there limits on who may sign a statutory declaration for a company and who may witness it?......
In the UK, unilateral or ‘dominant’ firm behaviour falls within section 18 of the Competition Act 1998. Section 18(1) of Chapter II provides that conduct by one or more undertakings amounting to abuse of a dominant position in a market is prohibited if it may affect trade within the United Kingdom. the abuse need only have the potential to impact trade within the UK, and the dominant position must exist within the UK (even if the abuse occurs outside the UK) ‘ UK’ refers to the United Kingdom or any part of it. There is no requirement that the part be ‘substantial’. Otherwise, the analysis of the applicability of the will mirror Article 102 TFEU, namely: is there a dominant position? This involves defining the market and evaluating the allegedly dominant undertaking’s position in that market, and is the conduct at issue...
A key proposition underpinning UK competition law Rival undertakings are expected to pursue their strategies independently in the marketplace. In general, head-to-head rivalry should deliver maximum consumer benefit and allocate resources most efficiently. As a result, the Competition and Markets Authority ( CMA) treats with caution any arrangement liable to soften competition or lessen the commercial uncertainty that would otherwise separate competitors. Nonetheless, businesses may have sound reasons for entering agreements whose clauses or obligations risk constraining competition. That is particularly true where such arrangements are intended to create or advance beneficial outcomes (efficiencies) that would not materialise without the restriction included in the agreement. UK competition policy aims to balance safeguarding effective competition (notably by outlawing illegitimate collusion) against securing advantages that arise-and are often only attainable-through co-operation. Chapter I sets out the legal framework for this balanced appraisal, weighing the...
ARCHIVED This Practice Note has been archived and is no longer maintained. It examines the Alternative Dispute Resolution for Consumer Disputes ( Competent Authorities and Information) Regulations 2015, SI 2015/542 ( Consumer ADR Regulations), as they apply to disputes arising before the commencement of Part 4, Chapter 4 of the Digital Markets, Competition and Consumers Act 2024 ( DMCCA 2024) (alternative dispute resolution for consumer contract disputes). It addresses trader information obligations, and their effect on consumer disputes and dispute resolution clauses in business-to-consumer ( B2C) contracts. It also outlines the criteria an alternative dispute resolution ( ADR) provider must satisfy to obtain certification under the Consumer ADR Regulations, and identifies the competent authorities responsible for granting such certification. Background Parts 1–3 of the Consumer ADR Regulations took effect on 7 April 2015, with Parts 4–5 commencing on 1 October 2015. They were...
Offset arrangements occur when a bidder must provide, or is offered, extra investment, payments, or other industrial, commercial, or economic advantages as a prerequisite of its tender, typically as part of a public procurement arrangement or contract. Prevalent in the aerospace and defence sectors, these mechanisms are also known as offset agreements, industrial benefit, industrial participation, industrial co-operation, juste retour, or counter-trade. Buying states often insist on offsets to balance substantial procurement outlay, or to secure access to advanced technology or employment opportunities. Numerous jurisdictions embed offsets within bid evaluation criteria and attribute considerable weight to them when scoring tenders at the award stage. Types of offset arrangement—direct or indirect Direct offset A direct offset links straight to the principal contract, for example producing a component within the buyer’s territory. Indirect offset An indirect offset arises when the supplier, or its government, must purchase or invest in...
This Practice Note provides a jurisdiction-specific Q& A on advertising and marketing in Russia, published within the Lexology Getting the Deal Through series by Law Business Research (published: November 2020). Authors: Gorodissky & Partners- Ilya Goryachev. 1. What are the principal statutes regulating advertising generally? The principal statute governing advertising in Russia is Federal Law No. 38- FZ of 13 March 2006 ‘on advertising’ (the Advertising Law). It: sets out definitions of advertising and participants in advertising; stipulates general requirements applicable to advertising; places restrictions on advertising of particular goods and on certain advertising types; regulates outdoor advertising and assigns powers to local authorities; and empowers the Federal Antimonopoly Service as the advertising regulator. Federal Law No. 135- FZ of 26 July 2006 ‘on competition protection’ defines unfair competition and lists its non-exhaustive forms; these provisions are likewise relevant to unfair...
Sanctions Sanctions are temporary limits or bans set by governments that govern how their citizens and businesses interact with targeted countries or regimes. They are a tool of foreign policy and may apply to countries, regimes, organisations, individuals, and entities. Sanctions will typically either be aimed at doing so......
Express and implied contractual terms distinguished Contractual terms may be either express or implied: Express terms—provisions set out in a written contract or clearly stated in an oral agreement at the point of formation (and they may comprise a combination of written and spoken terms) Implied terms—provisions not expressly stated but read in ‘by implication’ to reflect the parties’ intentions when the contract was made Terms may be implied by fact, by law, or by custom. For guidance on implying terms into contracts, see the following Practice Notes: Contract interpretation—terms implied by fact Contract interpretation—terms implied by law Contract interpretation—terms implied by custom and usage Issues with express contractual terms Even where terms are expressly agreed, issues can arise as to: incorporation—what has actually been included as an express term of the contract, and construction or...
The UK’s formal withdrawal from the EU took effect at 11 pm on 31 January 2020 (exit day). At that point, the withdrawal period under Article 50 TEU concluded, and the ratified Withdrawal Agreement, which set the legal terms of the UK’s departure, entered into force. On exit day, the ratified Withdrawal Agreement was released in the Official Journal of the European Union, together with the Political Declaration outlining the framework for the future relationship between the UK and the EU: Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, OJ L 29 31.01.20, p 7-187 Political declaration setting out the framework for the future relationship between the European Union and the United Kingdom, OJ C 34 31.01.20, p 1-16 Exit day stood as a significant milestone, being the date on which the UK...
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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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