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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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ARCHIVED: This Practice Note has been archived and is not maintained For the 2020 version of the rule, refer to Incoterms® 2020 Rules— DDP Delivered duty paid. The ICC publications are reproduced with permission from ICC Publishing SA. They are available from: ICC Publishing SA, 33-43 avenue du Président Wilson, 75116 Paris, France ICC United Kingdom, 1st Floor, 1-3 Staple Inn London, WC1V 7QH, United Kingdom www.iccwbo.org Incoterms® 2010 rules were superseded by Incoterms® 2020 with effect from 1 January 2020. For the DDP Incoterm applying from 1 January 2020, see Practice Note: Incoterms® 2020 Rules— DDP Delivered duty paid. DDP (insert named place of destination) Incoterms® 2010 Guidance note This rule can be used regardless of the chosen mode of transport and also where multiple modes are involved. “ Delivered Duty Paid” indicates the seller has delivered when the goods are at the buyer’s...
ARCHIVED This Practice Note is archived and is not maintained. For the 2020 version of the rule, refer to: Incoterms® 2020 Rules— CFR Cost and freight. ICC publications are reproduced here with permission from ICC Publishing SA. These and other ICC publications are available from ICC Publishing SA, 33-43 avenue du Président Wilson, 75116 Paris, France and from ICC United Kingdom, 1st Floor, 1-3 Staple Inn London, WC1V 7QH, United Kingdom, and www.iccwbo.org. The Incoterms® 2010 rules were superseded by the Incoterms® 2020 rules with effect from 1 January 2020. For the CFR Incoterm in force from 1 January 2020, see Practice Note: Incoterms® 2020 Rules— CFR Cost and freight. CFR (insert named port of destination) Incoterms® 2010 Guidance note This rule is intended solely for sea or inland waterway transport. ‘ Cost and Freight’ signifies that the seller places the goods on board the vessel, or...
This Practice Note outlines the issues to address when incorporating business-to-consumer ( B2C) standard terms and conditions. It reviews the relevant common law principles, how terms are incorporated online, and the effect of the unfair terms provisions in the Consumer Rights Act 2015 ( CRA 2015) on producing enforceable terms. EU case law before and after Brexit This Practice Note cites a number of EU decisions interpreting Directive 93/13/ EEC ( OJ L 95/29), the EU Unfair Terms in Consumer Contracts Directive ( EU UTCCD), which the CRA 2015 re-implemented into UK law. Broadly, EU judgments issued on or before 31 December 2020 remain binding on UK courts and tribunals (even if the EU courts later depart) until UK courts choose to diverge. Accordingly, UK courts and tribunals must take into account any criteria provided by the Court of Justice when assessing fairness or...
October 2022 saw the Information Commissioner’s Office ( ICO) unveil ICO25, a three-year strategy running to October 2025, intended to drive openness and, in turn, bolster legal and regulatory clarity for organisations, especially those with a commercial stake in processing personal data and innovating in this field. This Practice Note offers a pragmatic digest of that mission, and sets out how advisers can support those they counsel to plan and prepare, based on what is currently known about forthcoming themes. It highlights practical steps professionals can take to align plans with the anticipated direction of travel during the period. It assumes readers are conversant with all facets of data protection law, including the regulator’s role and the scope of the supervisory authority too. Those less familiar may wish to begin with Practice Note: The Information Commissioner’s Office ( ICO). The UK data protection law...
The International Chamber of Commerce ( ICC) has created widely used rules and guidance to govern letters of credit and related practice. The principal publications for commercial letters of credit are: the Uniform Customs and Practice ( UCP) for Documentary Credits, which incorporates the Supplement to UCP for Electronic Presentation (the e UCP) the International Standard Banking Practice for the Examination of Documents under Documentary Credits These works set out the general framework for documentary credits. For more information on commercial letters of credit in general, please see Practice Notes: Characteristics of commercial letters of credit Types of commercial letters of credit Commercial letters of credit—structure and parties The nature of the Uniform Customs and Practice for Documentary Credits The UCP comprises standard terms and conditions that parties may choose to incorporate into a letter of credit, by agreement between the parties...
STOP PRESS From 24 February 2025, the core provisions of the Procurement Act 2023 ( PA 2023) are in effect. Procurements launched on or after that date must proceed under PA 2023, while those initiated under earlier regimes must continue to be run and managed under those rules, including: Public Contracts Regulations 2015 Utilities Contracts Regulations 2016 Concession Contracts Regulations 2016 Defence and Security Public Contracts Regulations 2011 The Cabinet Office has also refreshed its standard contract document suites, templates and guidance for the government’s Model Services Contract, Mid‑ Tier Contract and Short Form Contract. These updated materials were released to coincide with the PA 2023 ‘go‑live’ on 24 February 2025. This Practice Note will be updated shortly to reflect these changes. In the meantime, see: News Analysis: Procurement Act 2023 ‘go live’—what happens next? Government model contracts updated for...
Executing entity— Q& As This Practice Note presents Q& As on practical execution matters applicable to certain entities, specifically: Individuals Companies, corporate bodies and corporations Partnerships, LLPs and limited partnerships Charities, trusts and unincorporated associations Attorneys Personal representatives Individuals Where individuals are party to a transfer of shares (including a share purchase agreement) to be executed as a deed, and the three individual sellers also act as trustees of Trust 1, Trust 2 and Trust 3, does the share purchase agreement need 12 execution blocks with each seller/trustee signing four times, or will a single execution block per person suffice? If a person intending to sign a contract dies before signing, may their personal representative ( PR) sign in their place, or are there other ways to complete the contract? If a PR can sign, is any...
This Practice Note considers common matters that frequently arise when drafting and negotiating endorsement agreements in England and Wales. In a standard endorsement deal, a brand typically retains a well-known public figure to promote its goods or services. That promotion can cover a broad range of activity, such as TV adverts, print adverts, public appearances, and promotional posts on social media. What is an ‘endorser’? An endorser is a person, usually a public figure—celebrity, sportsperson, or subject matter specialist—who grants use of their name, image, persona, or reputation to a product, service or brand under a commercial arrangement. Endorsers are engaged to boost brand visibility, credibility and consumer confidence by publicly aligning with a product, whether either via direct promotion or association. They may feature across traditional advertising channels (television, print, out-of-home and digital media), serve as brand ambassadors, or take part in various events, PR...
Indemnities Indemnities serve as a vital means of allocating risk within commercial agreements. They attract hard-fought negotiation and are routinely examined by the courts. Their wording, reach and application differ widely, yet they must not be drafted, assessed or bargained over without a sound grasp of the principles developed in the case law surrounding them. An indemnity clause should never be read alone. It needs to be considered as one of several potential remedies, with clarity on how each differs and the ways they may operate together across the agreement’s remedial framework. Any indemnity provision should be analysed against the contract as a whole and alongside external considerations—such as the deal’s circumstances and insurance—so that the protected risk can be properly understood and advised upon and effectively managed in context. This Practice Note chiefly addresses indemnity clauses used in general commercial...
FORTHCOMING CHANGE: On 24 May 2024, the Digital Markets, Competition and Consumers Bill secured Royal Assent, was enacted as the Digital Markets, Competition and Consumers Act 2024 ( DMCCA 2024), with some provisions commencing immediately. The unfair commercial practices regime in DMCCA 2024, Part 4, Chapter 1 took effect on 6 April 2025, disapplying and substituting the equivalent rules in the Consumer Protection from Unfair Trading Regulations 2008, SI 2008/1277 ( CPUTR 2008) from that date. However, sections 232, 234 and 235, which concern consumers’ rights to redress, have not commenced; until they do, Part 4A of CPUTR 2008 continues to regulate redress. The strengthened consumer protection enforcement powers likewise began on 6 April 2025. Measures still pending include the repeal of the Alternative Dispute Resolution for Consumer Disputes ( Competent Authorities and Information) Regulations 2015 ( Consumer ADR...
Digital Business— Austria— Q& A guide [ Archived, 2021 edition] This Practice Note presents a country-focused Q& A on e‑commerce in Austria, issued within the Lexology Getting the Deal Through series by Law Business Research ( January 2020). Authors: DORDA— Axel Anderl; Andreas Zahradnik; Bernhard Müller; Paul Doralt; Christian Schöller; Elisabeth König; Nino Tlapak 1. How can the government’s attitude and approach to internet issues best be described? The newly elected Austrian administration has stated it will: extend its broadband agenda, including 5G deployment; uphold the EU’s net neutrality; create and back an Austrian Cloud aligned with the GDPR and data protection norms; bolster the Austrian Data Protection Authority; endorse the PSI Directive and the Open Data Directive; prioritise AI and blockchain; and advance digitalisation and technological...
This Practice Note outlines the core principles for recovering damages arising from contractual breach. It addresses the compensatory purpose of damages; categories covering pecuniary and non-pecuniary loss; nominal damages; damages available under the Sale of Goods Act 1979 ( SGA 1979); the operation of default damages clauses; contractual mechanisms for remedying a breach; and the availability of interest. As stated by Baron Parke in Robinson v Harman, the party who suffers loss through breach should, in terms of damages, be placed in the position they would have occupied had the contract been performed... Compensatory function of damages for breach of contract The ordinary role of contractual damages mirrors that in tort: they are compensatory (see, for example, British Westinghouse v Underground Electric Rlys). The purpose is to make good the actual loss sustained by the innocent party and, so far as money can achieve it, to place them in...
This Practice Note explores why a third party might wish to rely on a contract to which it is not privy, and assesses whether, on the facts, the common law doctrine of privity can be avoided by recognising instead a collateral contract, a group contract, or an agency arrangement in the circumstances. Why consider the effects of contracts on third parties? Although your client is not party to the agreement in question, you may still need to determine whether they might be: liable for any obligations that arise; or entitled to enforce any benefits conferred by the contract. Consider the following scenarios: in a contract between A (promisor) and B (promisee), A undertakes to pay £1,000 to C (third party) in a contract between A (promisor) and B (promisee), A agrees that any liability in relation to C (third party) shall be...
Practice Note This Practice Note sets out a summary of the contract governing the sale and purchase of shares in a private limited company (target), commonly also referred to as the share purchase agreement ( SPA). An SPA formally captures the terms under which a buyer agrees to acquire from the seller(s) shares in the target’s capital (sale shares), whether that is the whole of the target’s share capital or only a partial stake. The buyer undertakes to pay the seller the price for the acquisition of the sale shares (consideration), and in exchange the seller passes legal title in the sale shares to the buyer (by executing a stock transfer form). This becomes effective on completion of the transaction (completion), which may take place when the SPA is signed or on a later agreed date (where completion is...
When considering a claim for damages When a claim for damages is assessed (see Practice Note: Contractual damages—general principles and related content), the court applies the doctrines of causation and remoteness. A party’s responsibility to reduce its loss is addressed in Practice Note: Mitigation in civil damages claims. For assistance on causation within professional negligence, consult Practice Note: Causation and remoteness in professional negligence claims. For tort-based claims, see Practice Note: Causation and remoteness in tort and negligence claims. Note: matters concerning causation and the ‘but for’ test within the specific arena of insurance policy wording fall outside this Practice Note, but were examined in depth in the coronavirus ( COVID-19) test case, The Financial Conduct Authority ( FCA) v Arch Insurance ( UK) Ltd, the judgment emphasising the necessity of homing in on the central issue in ‘but for’...
This Practice Note examines facilities management ( FM) contracting, explaining what it involves and its advantages and disadvantages... A strategic approach to service provision FM contracting is, at heart, a commercial services contracting model, which may comprise: Hard FM – covering the upkeep and fabric of premises, such as mechanical and electrical systems Soft FM – covering support functions within a building, including cleaning, security and helpdesking Total FM – bundled packages that may integrate multiple hard and soft FM services The worth of FM contracting as a contractual mechanism is both economic and operational, enabling organisations to apply FM in strategic and tactical ways to reframe their own business activities... What makes FM different? FM is distinguished as a service sector by the binding contractual relationship between the FM contractor and the client, under which the contractor undertakes services that were...
This Practice Note signposts material on the correct execution of deeds and simple contracts by companies, corporate bodies and corporations, including guidance, Precedent clauses and Q& As. Companies Act 2006 Execution formalities and clauses For direction on executing documents by companies on or after 6 April 2008—the date the relevant provisions of the Companies Act 2006 ( CA 2006) took effect—see Practice Notes: Execution formalities—companies Forming enforceable contracts—authority— Companies Act companies For specimen execution clauses where a Companies Act company is entering into: a simple contract (not a deed), see Precedent: Execution clause—company—contract a deed (as opposed to a simple contract), see Precedent: Execution clause—company—deed Seals For guidance on company seal requirements, see Practice Note: Requirements of the company seal. For detailed information on the use of electronic seals in information exchanges between businesses when signing contractual documents, see also Practice Note: Electronic...
This handbook empowers organisations to embed key climate factors within the commercial logic of deals and agreements, supporting them in achieving climate objectives and......
UK data protection law includes a right to data portability. That entitlement enables people to receive from a controller a copy of their personal data in a structured, machine-readable form. Moreover, in certain situations, people can require the controller to transmit that data straight to a different controller. This Practice Note considers the right to data portability. It presumes some familiarity with UK data protection law. For an overview of UK data protection law, with guidance on core concepts and terminology, see the UK data protection law collection. Note that there are notable parallels between the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR) and the EU’s General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR) and this Practice Note concentrates on the position under the UK GDPR. For details on the background to the UK GDPR and how it...
This Practice Note explores the reasons why organisations choose to rely on standard terms and conditions ( T& C, Ts& Cs, T& Cs) when trading with either other businesses (business to business or B2B transactions) or consumers (business to consumer or B2C transactions). It is designed to support the commercial practitioner in analysing the client’s position and in advising whether standard terms and conditions are appropriate for that client. Purpose of standard terms and conditions Businesses adopt standard terms and conditions for several reasons, including the following: speed consistency cost allocation of risk It is vital that businesses fully appreciate the need to put arrangements in writing where possible and to implement and maintain standard written terms that are tailored and pertinent to their particular business or trade. Importance of standard terms and conditions Standard terms and conditions, when correctly used and properly incorporated, are integral to income...
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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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