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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 sets out the main digital advertising and marketing routes, such as website advertising (banners and tile ads), search engine optimisation ( SEO), social media advertising, email advertising, mobile advertising, streaming advertising, digital out-of-home ( DOOH) and virtual out-of-home ( VOOH), virtual and augmented reality advertising, affiliate marketing, and content and native advertising. It also flags the core regulatory and legislative frameworks, together with the outcomes of non-compliance. Digital, online and social media (together termed ‘digital’) cover a wide and continually expanding range of channels for delivering promotional materials. Each option carries particular benefits and drawbacks when it comes to managing legal risk. Digital technology can aid compliance by permitting closer control of campaigns than traditional media. However, this is a rapidly evolving field, with innovation frequently stretching the limits of current legislation. For fuller guidance on the topics...
This Practice Note signposts material on the execution of deeds and simple contracts by administrators, administrative receivers, liquidators and other receivers, comprising guidance and sample precedent clauses. Administrators Execution formalities and clauses For guidance on the proper execution of deeds and simple contracts for administrators, see Practice Note: Execution formalities—administrators. For examples of execution clauses for administrators entering into: a......
This Practice Note sets out the issues a creditor faces when dealing with a trading partner that owes sums or is experiencing financial difficulty or formal insolvency. It highlights contractual and commercial routes, practical debt-recovery measures, and guidance on safeguarding the creditor’s position during an insolvency process. Spotting the warning signs In practice, trade creditors are frequently the last to discover that a company they supply is under financial strain. Assessing whether the reassurance that 'the cheque is in the post' is genuine, or concealing a wider difficulty, is not straightforward. While the published accounts of major listed companies can be accessible and contain extensive information—some mandated and some volunteered—the financial statements within them largely describe historic performance. By contrast, a company’s management accounts are typically the more insightful resource, as they include forward-looking estimates and forecasts of income, expenditure and...
This Practice Note provides an overview of the UK’s Data Protection Act 2018 ( DPA 2018). For a broader primer on data protection law in the UK, see Practice Note: Data protection law—new starter guide. The UK data protection law collection brings together wider guidance and is a suggested first port of call for research. In brief In summary, the DPA 2018 currently governs: the processing of personal data within the UK GDPR framework, complementing the core rules laid down in the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR), with extra measures covering: lawful basis for processing processing on the basis of relevant international law processing special categories of personal data and criminal offence data ...
First written by James E. Meadows of Culhane Meadows PLLC for Lexis Practical Guidance UK-adapted from the US version—this Practice Note offers a framework to shape a negotiation plan for an outsourcing arrangement. As outsourcing transactions encompass numerous intricate issues, often face compressed timetables (particularly where concurrent negotiations are underway), and require extensive documentation to record the parties’ terms, negotiations must be disciplined and well organised. This Practice Note does not explore the specific negotiation points in depth; those are covered comprehensively in Practice Notes: Negotiation guide—services agreements and Negotiation guide— IT contracts. Pre-negotiation considerations Achieving effective outsourcing negotiations starts before formal discussions commence. It begins with determining whether outsourcing is the right course. Negotiations will then address the central aspects of an outsourcing deal, such as: What are the advantages and disadvantages of outsourcing? How do the financial outcomes of...
ARCHIVED This Practice Note is archived and is no longer maintained. It assesses the rules on service that applied between the UK’s departure from the EU on 31 January 2020 and the end of the implementation period on 31 December 2020, which the EU refers to as the transition period. It examines whether the implementation period could be extended, whether Regulation ( EC) 1393/2007 (the Service Regulation) governed service during that timeframe, and ways to minimise uncertainty by employing process server clauses. For a swift Brexit reference tool answering key questions and providing useful updates, research tips and materials, see: Brexit Bulletin—key updates, research tips and resources. Definitions This Practice Note uses the following definitions: European Union ( Withdrawal) Act 2018— EU( W) A 2018 European Union ( Withdrawal Agreement) Act 2020— EU( WA) A 2020 exit day—defined in EU( W) A 2018, s 20, as 31 January...
This Practice Note explores issues in multi-jurisdictional outsourcing, covering both offshore and nearshore models. Outsourced service delivery is a well‑established approach across most developed markets and is growing in developing economies. It examines matters specific to multinational or offshore arrangements, including: Initial considerations Deal structures Payment and invoicing Benchmarking Governing law Forum for resolving disputes Jurisdiction Operational issues Data protection Personnel Tax considerations Corruption, slavery and ethical issues Termination For an outsourcing contract designed for international use, see Precedent: Outsourcing agreement—long form. See also Precedent: Offshore IT outsourcing—training materials. For broader guidance on cross-border contracting, see International contracts—overview. For country-specific insight, see Doing business in key global jurisdictions—overview and Lexology Panoramic: Outsourcing. Initial considerations The expansion of international outsourcing has been enabled by suppliers building credible regional delivery centres that provide...
With appreciation to other contributors from Squire Patton Boggs’ offices across its global network. Cross-border JVs There is no universal model for creating cross-border joint ventures ( JVs) (that is, where one or more JV parties are based outside the UK and intend to form a JV outside the UK). Ultimately, the agreement’s terms must capture the parties’ commercial bargain. That said, the legal considerations outlined in this and the accompanying Practice Notes— Cross-border joint ventures—taxation and funding issues, Cross-border joint ventures—management and control, and Cross-border joint ventures—termination (together, the Cross-border Joint Venture Practice Notes)—may influence both the jurisdiction selected for the JV entity and the commercial deal itself. These factors should therefore be reviewed at the earliest opportunity to give the JV the best chance of success. Even where a joint venture agreement ( JVA) is governed by a familiar law, such as English law,...
This Practice Note signposts content on the correct execution of deeds and simple contracts when acting via a power of attorney and for overseas companies, including guidance on execution formalities across different jurisdictions, notaries, precedent clauses and Q& As. Execution formalities Overseas companies For guidance on the proper execution of documents by overseas companies in accordance with the Overseas Companies ( Execution of Documents and Registration of Charges) Regulations 2009, SI 2009/1917, see Practice Note: Execution formalities—overseas companies. For examples of execution......
ARCHIVED: This Practice Note is archived and no longer maintained. Introduction We are confronted with a new life‑threatening virus, spreading rapidly across the globe, for which there is currently no effective therapy or vaccine. Encouragingly, this emergency has prompted a surge of innovation and product development, buoyed by remarkable generosity from pharmaceutical and medical device businesses that are combining resources, opening access to relevant intellectual property ( IP) and providing products free of charge or at cost. While such unprecedented IP sharing is highly praiseworthy in addressing the pandemic, organisations should carefully consider how their IP is protected and disseminated to avoid harmful repercussions for their IP rights and for sustainable product development over the longer term. Companies should also note that some governments are contemplating drastic steps, including compulsory licensing, to permit third parties to use new technologies without infringing patents. This is...
This Practice Note offers guidance for the commercial practitioner on identifying when a company is encountering significant financial distress. It also condenses the key matters to prioritise to steady the business whilst evaluating the options available to the company, and outlines considerations for a business trading with a company in financial difficulty... Establishing serious financial difficulty Signals can usually be detected in a company’s financial statements and management accounts, as well as in communications with major suppliers and debt providers (eg banks, supplier statutory demands, etc). If the board fails to deal with these indicators, they will, in most cases, result in a value‑destroying formal insolvency of the company... Warning signs heightened competition causing loss of key customers and tighter margins an outmoded business model due to technological advances or shifts in customer demand/revenue channels weak cash...
This Practice Note summarises key UK legislative, regulatory and voluntary best practice resources on corporate social responsibility ( CSR), environmental, social and governance ( ESG), human rights reporting and related company initiatives. It also highlights core EU regimes that require sustainability and ESG disclosures. ESG and sustainability collection We have curated an ESG and sustainability collection to assist practitioners advising organisations on ESG and sustainability, bringing together content from several Lexis+® UK Practice Areas (subscription required). For more details, see: ESG and sustainability collection. Board briefing notes We have additionally prepared briefing notes for the board of a quoted company and for the board of an unquoted company (including an AIM company), summarising the key environmental reporting duties applicable to the business: Board briefing note—environmental reporting—quoted companies Board briefing note—environmental reporting—unquoted companies Defining CSR and ESG Corporate social responsibility ( CSR)—also called corporate...
Contractual set-off Set-off gives Party A, to whom Party B owes money, the means to secure payment by netting the sum due against Party A’s separate liability to Party B arising from another dealing. Where a creditor and debtor have mutual transactions, the creditor may deduct from the debt owed to them any amount they themselves owe to the debtor. See Practice Note: What is set-off and when is it available? Contractual set-off is one of the five principal types identified in Practice Note: Types of set-off. It arises where the parties have created a right of set-off by an express contractual term. Parties use it to widen or restrict the set-off rights available at general law; however, it cannot change the scope or operation of insolvency set-off, which applies mandatorily despite any contractual arrangement between the parties—see Practice Note: Types of set-off—...
This Practice Note outlines the pros and cons of adopting a contractual joint venture arrangement, and also highlights the usual categories and forms of contractual joint ventures......
Overview This Practice Note sits within our LLB Contract Law series, designed expressly for law students. It sets out the doctrine of frustration as a route by which contractual duties are discharged in English law. It sketches the conceptual foundations of frustration and separates it from discharge through performance, breach, or mutual agreement. The Note traces the doctrine’s evolution from Taylor v Caldwell [1861–73] All ER Rep 24 to the modern, markedly different approach in Davis Contractors v Fareham UDC [1956] AC 696. It analyses the main classes of frustrating events, including destruction of the subject matter, personal incapacity, failure of a contemplated event to occur, supervening illegality, and war, and explores the doctrine’s boundaries, including self-induced frustration and agreements in which the parties have allocated risk. It also sets out the legal effects, namely automatic discharge and the statutory...
This Practice Note presents a concise overview of the general principles that govern contract interpretation. Although there is no single formula for construing terms (as much depends on the particular facts of each case), a substantial body of case law has developed certain overarching principles. The leading authorities are outlined below. Investors Compensation Scheme v West Bromwich Building Society Lord Hoffman articulated five key propositions that have become the primary guidance on interpreting contracts: the test is objective: what a reasonable person, with the background reasonably available, would have understood the agreement to mean at the time relevant background, the so-called matrix of fact, may properly be considered previous negotiations and subjective intention are excluded (with limited exceptions, for example rectification) the words used must be read in the context of the contract as a whole, against the factual background a common-sense approach that the......
An agreement on the terms of a contractual proposal only crystallises into a binding and enforceable contract once that proposal has been accepted. This Practice Note explores what can amount to contractual acceptance, the ways it may be communicated, and the circumstances in which it can be withdrawn. For guidance on identifying when an offer, capable of acceptance, has been made, see Practice Note: Forming enforceable contracts—offer. Note: Part 36 settlement offers under CPR 36 sit outside the ordinary principles of contract law and are governed by the distinct regime in CPR 36. For guidance on accepting a CPR 36 offer, see Practice Note: Part 36 offers—how and when to accept a Part 36 offer. What do we mean by an acceptance of an offer? Acceptance is the final, unconditional manifestation of assent to the terms of a contractual offer. Note: it is not...
ARCHIVED: This Practice Note has been archived and is not maintained. It provides a concise overview of the principal legislation relevant to trading with consumers, and consumer contracts formed, before 1 October 2015. From that date, the Consumer Rights Act 2015 revised or superseded much of the material considered here. For the position after 1 October 2015, see Practice Note: Key consumer legislation—summary. The table below outlines the main statutes businesses had to observe when engaging with consumers before 1 October 2015, indicates how those laws evolved over time, and highlights key actions arising from them. Core legislation Legislation: Unfair Contract Terms Act 1977 ( UCTA 1977) Description/key terms: UCTA 1977 identifies categories of liability that businesses cannot exclude against a consumer, and applies a test of reasonableness to other provisions that exclude or cap consumers’ liability or remedies. Action...
This Practice Note explores the doctrine of consideration and its central role in English law when assessing whether a contract is enforceable. A promise will be enforceable only if it is set out in a deed, or exchanged for something of value, termed ‘consideration’. This Practice Note explains what constitutes valid consideration. It looks at valid consideration in its various forms: executory and executed consideration, benefit and detriment, past consideration, the adequacy of consideration, and when performance of existing duties may amount to consideration, including on the variation of an existing contract. Note: settlement offers made under CPR Part 36 operate outside the ordinary rules of contract law and are governed by the specific regime in CPR 36. See Practice Notes: Part 36 offers—what are they, why make them? and Part 36 offers—how to make a valid Part 36 offer. For guidance on the...
STOP PRESS: This document is currently being revised to take account of the Data ( Use and Access) Act 2025 ( DUAA 2025), which updates the UK GDPR and the Data Protection Act 2018. For further detail on DUAA 2025 compliance, see Practice Note: Data ( Use and Access) Act 2025—compliance implications. This Practice Note draws on the UK General Data Protection Regulation ( UK GDPR) and the consent guidance issued by the Information Commissioner’s Office ( ICO). Under the UK GDPR, consent is rarely the default lawful basis for handling personal data, and organisations should assess whether another lawful ground is more suitable from both legal and operational viewpoints—see below: Do you need consent? and Practice Note: How to process personal data lawfully. What is consent? Consent means a freely given, specific, informed and unambiguous expression of the data subject’s wishes, whereby they indicate...
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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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