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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 on construing contracts examines when material from pre-contract negotiations and statements may be relied upon to assist interpretation of the agreement. When advising on contractual construction, you should have regard to: the guiding principles applied by the court when interpreting the meaning of contracts, including the need to consider the background matrix of fact (also known as the factual matrix) and the commercial context in which agreements were made—see Practice Note: Contract interpretation—the guiding principles the rules (or ‘canons’) of construction used to help ascertain the sense of a written contract—see Practice Note: Rules of contract interpretation other aids to contractual interpretation such as the parol evidence rule—see Practice Note: The parol evidence rule in interpreting contracts the admissibility of surrounding documents as an aid to construing contracts—see Practice Note: Contract...
The principal limitation periods The following table sets out the main categories of action and specifies how many years a claimant has to issue proceedings under the Limitation Act 1980 ( LA 1980), highlighting, where relevant, the applicable statutory provisions and authorities as appropriate. For help on identifying the applicable limitation period (ie the point at which time begins to run and when it ceases), refer to Practice Note: Limitation Act 1980—general application. Please note the table below is not comprehensive; it does not list every possible claim. It concentrates on those actions most likely to matter to a dispute resolution practitioner and omits certain highly specific causes of action, for instance, successive conversions of goods ( LA 1980, s 3), although these are contained within the LA 1980......
Rome II (transitional) Use this Practice Note to identify the applicable law before the courts of England and Wales for harmful events that took place between 11 January 2009 and 31 December 2020. It applies to events giving rise to damage within that period. Where matters occurred outside those dates, the UK courts will apply a different applicable law regime. For other dates, an alternative conflicts framework will instead be used there. The governing regime turns on the date of the precipitating event. For guidance on the various regimes and how they relate, see Practice Note: Applicable law regimes. This Practice Note addresses Regulation ( EC) 864/2007 on the law governing non-contractual obligations, Rome II (transitional). In identifying the applicable law, Article 4(1) sets the default rule. However, a different system will apply if a derogation under Articles 4(2) or 4(3) is...
What is a company's constitution? This Practice Note sets out what is meant by a company’s constitution in detail. It focuses on the core element of that constitution: the articles of association. It reviews the statutory definition under the Companies Act 2006, outlines the character of the articles and distils the typical provisions found in a company’s articles. The Practice Note also addresses entrenched terms within the articles and the importance of the memorandum of association......
This Practice Note offers practical guidance on correct execution of simple contracts and deeds for unincorporated associations. Unincorporated associations arise from agreement between members who come together, typically for a non-profit purpose. Examples include sports clubs or voluntary groups. For more information, see Practice Note: Unincorporated associations. We have created a collection that serves as a comprehensive, interactive resource to help users identify and navigate the concepts and common issues involved in executing documents. Each section or phase provides practical guidance, precedent clauses and Q& As relevant to that stage. For more information, see: Execution collection. Capacity An unincorporated association has no separate legal identity, meaning it cannot enter into contracts in its own name. As a result, it has no rights, cannot assume duties and cannot own property. Property said to ‘belong’ to an unincorporated association will be vested in the leading members of the...
Introduction The strand of domestic law that originally arose from EU obligations and was captured by the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) as retained EU law ( REUL) is, from 2024, referred to as ‘assimilated law’. This change follows the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023). The new label signals notable shifts in the domestic standing and handling of assimilated law. Its objective is to advance the process of bringing former EU rules into the UK’s legal system and to support their reform... Reminder: what was retained EU law ( REUL)? To understand the move from REUL to assimilated law, it is useful to revisit REUL, which was established by EU( W) A 2018. For background on EU( W) A 2018, see Practice Note: Brexit—key legislation explained. After the Brexit...
Purpose A notices clause is frequently inserted into a contract to provide both sides with certainty and transparency around formal communications and the sending and receipt of notices between the parties to the agreement, including how they are given and received. Where no such clause appears, default statutory rules may step in (see Statutory provisions below). In the Court of Appeal in Khan v D’ Aubigny, Nugee LJ observed that a notice can be a document that imparts information as well as one that invokes or exercises a right. It is also commonly taken to mean a written notice bearing a degree of formality, though no fixed wording or prescribed format is demanded. Observing the requirements of a notices clause will often be critical across a variety of contractual contexts. By way of illustration, it typically matters when prolonging (or stopping the...
Stop Press On 24 February 2025, the principal provisions of the Public Procurement Act 2023 ( PA 2023) take effect. We are in the process of reviewing and updating our materials. Please note that procurements launched on or after 24 February must be conducted under PA 2023, while those initiated under the previous regime—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 tendered and administered in line with that legislation. For information, see Practice Note: Key Implications of the Procurement Act 2023 for Construction Lawyers. Brexit impact—public procurement The UK public procurement framework originates in EU procurement law and is therefore affected by the UK’s withdrawal from the EU. For general updates on the process and preparations for Brexit, see Practice Note: Brexit timeline. For further...
ARCHIVED : This Practice Note has been archived and is not maintained. This Practice Note reviews the approach to the recognition and enforcement of judgments as it will operate from the UK’s exit from the EU on 31 January 2020 through to the end of the implementation period, which the EU describes as the transition period. It explores whether that implementation period could be extended, evaluates if the enforcement framework under the Brussels regime—including Regulation ( EU) 1215/2012, Brussels I (recast)—is in force during the implementation period, as well as setting out the position after the implementation period concludes. For a quick reference Brexit research aid that answers key questions on Brexit and provides useful Brexit updates, research tips and resources, see: Brexit Bulletin—key updates, research tips and resources......
ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note monitors major IP developments and guidance that relate specifically to Brexit. Jump to: General IP Brexit developments Copyright and databases Trade marks Designs Patents and SPCs Geographical indications This Practice Note does not follow wider Brexit developments; for those, see Practice Note: Brexit timeline. To follow the progress of UK legislation introduced as part of the legislative preparation for the UK’s departure from the EU, see Practice Note: Brexit legislation tracker. On 31 January 2020 (exit day), the UK ceased to be an EU Member State and relinquished its right to participate in the EU’s political institutions and governance frameworks. Under the transitional arrangements in Part 4 of the Withdrawal Agreement, exit day signalled the start of an 11‑month implementation period during which, for many...
ARCHIVED: This Practice Note has been archived and is not maintained. Proposals from the UK and the EU on transitional arrangements for applicable law will be a pivotal concern for UK litigators. This Practice Note examines in detail how Brexit will influence the process of identifying the applicable law once the UK departs the EU. At present, that choice is governed by Regulation ( EC) 593/2008 ( Rome I) and Regulation ( EC) 864/2007 ( Rome II). The Note distils the respective positions of the UK and the EU and assesses the likely potential outcomes as the UK leaves the EU. It also flags issues that may surface on exit and considers potential alternative regimes that could support the determination of the applicable law. Finally, it addresses the drafting of an applicable law clause. Applicable law is sometimes described as the governing law. For...
Scope of Practice Note This Practice Note addressing breach of contract explores what can constitute a contractual breach, and the judicial approach to assessing it by carefully construing the parties’ obligations—embracing both the ‘principle of futility’ and the ‘prevention principle’. It also sets out, in particular, the available responses to breach, namely an express contractual power to terminate for breach, or termination at common law for repudiatory breach, together with contractual damages and any various statutory constraints upon the remedies and liabilities arising from breach of contract. Note: a breach of contract may (though not invariably) lead to the agreement being terminated or brought to an end. Yet there are numerous other mechanisms by which a contract may end besides breach, and other circumstances in which a contract can be treated as void or rescinded. For guidance on these topics, see the...
ARCHIVED: This Practice Note is no longer updated or maintained at present. It offers an outline of the law, guidance and practice concerning defective goods and services in the UK, including consumer remedies, for consumer contracts entered into before 1 October 2015 only. For contracts concluded after 1 October 2015, consult our Consumer Rights Act 2015 materials listed in the ‘ Introduction’ below as indicated. Introduction This Practice Note sets out the law, guidance and practice relating to faulty goods and services in the UK, including, in particular, remedies available to consumers where a trader fails to comply with a contract for the sale of goods and/or services, and applies to consumer contracts made before 1 October 2015 when the Consumer Rights Act 2015 ( CRA 2015) took effect. It addresses the meaning of consumer and trader, the sources of consumers’ rights and...
This Practice Note offers an overview of the business-to-business ( B2B) e-commerce arena. Its focus is B2B website, platform and email e-commerce (also called ‘paperless trading’), and it introduces the traditional method of electronic data interchange ( EDI), m-commerce, smart contracts and blockchain. It addresses the primary models used in B2B e-commerce, distinguishes e-commerce from e-business, and surveys current trends across B2B e-commerce. It provides targeted guidance on both e-commerce platforms and online platforms pertinent to the B2B space, alongside related notes on drop shipping, warehousing and also cross-border e-commerce. This Practice Note does not address business-to-consumer ( B2C) arrangements; for guidance on which, see Practice Note: Business to consumer e-commerce—legal issues. Consideration of sector‑specific laws or regulatory requirements, including those relevant to financial services or the public sector, is also outside the scope of this Practice Note. For guidance on the...
ARCHIVED: This Practice Note is archived and no longer updated. For the 2020 iteration of this rule, refer to Incoterms® 2020 Rules— EXW Ex works. ICC Publishing SA has authorised reproduction of these ICC publications. Copies and additional ICC titles are obtainable 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 From 1 January 2020, Incoterms® 2010 were superseded by Incoterms® 2020. For the EXW term effective from that date, see Practice Note: Incoterms® 2020 Rules— EXW Ex works. EXW (insert named place of delivery) Incoterms® 2010 Guidance note Usable with any chosen mode of transport, including multimodal shipments. Best suited to domestic dealings; for international trade, FCA is generally the better choice. Ex Works means delivery occurs when the seller places the goods at the...
ARCHIVED: This Practice Note is archived and is not kept up to date. This commercial tracker recorded the progress of UK and EU legislative proposals and pertinent cases on appeal in the Court of Justice of the European Union, the Supreme Court and the Court of Appeal relating to commercial law up to and including June 2023. A new Commercial tracker is available to follow developments from 2023 onwards; see Practice Note: Commercial tracker 2023 [ Archived]. This tracker is intended for monitoring the progress of legislative proposals and relevant appeal cases connected to commercial law. Legislation: UK legislation EU legislation Cases: Court of Justice of the European Union Supreme Court Court of Appeal Legislation UK legislation To follow Brexit legislation, see Practice Note: Brexit legislation...
ARCHIVED: This Practice Note is archived and no longer maintained. For the rule as updated in 2020, refer to Incoterms® 2020 Rules— FCA Free Carrier. ICC publications appear here with permission from ICC Publishing SA. These and other ICC titles can be obtained from ICC Publishing SA, 33–43 avenue du Président Wilson, 75116 Paris, France; from ICC United Kingdom, 1st Floor, 1–3 Staple Inn, London, WC1V 7QH, United Kingdom; and via www.iccwbo.org. From 1 January 2020, Incoterms® 2010 were superseded by Incoterms® 2020. For the FCA term applicable from that date, see Practice Note: Incoterms® 2020 Rules— FCA Free Carrier. FCA (insert named place of delivery) Incoterms® 2010 Guidance note This rule applies regardless of the chosen mode of transport and can also cover multimodal shipments. ‘ Free Carrier’ signifies that the seller presents the goods to the carrier, or another party...
General Throughout the duration of an agreement (and sometimes afterwards), one or more of the parties may wish to notify third parties about particular matters relating to the existence of the agreement, its subject matter, or developments arising from the operation of the agreement. The kind of information envisaged is that typically found in public announcements or press releases issued by one or more of the parties (eg to brief investors, prospective investors, the media, potential customers, or regulatory authorities). Such announcements are usually distinct from information generated through the performance of the agreement itself (eg in a consultancy arrangement, the consultant might produce routine reports on the tasks undertaken and supply that information to its client and, in some cases, to third parties). Nevertheless, the parties will not wish to permit each other to disclose information to third parties without restraint and will...
This Practice Note This Practice Note addresses the criteria governing an employer’s vicarious liability in tort, arising from particular legal relationships and specified conduct, including wrongful acts. It further reviews liability within ‘relationships akin to employment’ and the circumstances in which more than one employer may share responsibility (dual vicarious liability). It analyses, in particular, the ‘close connection test’, which identifies the necessary link between the relationship and the wrongdoing, as re-examined by the Supreme Court in Trustees of the Barry Congregation of Jehovah's Witnesses v BXB. It sets out the stance regarding liability for the acts of independent contractors, and proceeds to outline when an employer might be answerable for torts committed by someone else’s employees, and where liability to third parties in contract (express and ostensible agency) can arise in practice. This Practice Note also details liability for breaches of...
This Practice Note offers a high-level overview of the principal strands of divergence between UK and EU consumer protection legislation that have emerged since the UK left the EU on 31 December 2020 ( IP Completion Day). It contrasts differences across the following areas: consumer information and cancellation rules, consumer saving schemes, dark patterns (ie harmful online choice architecture practices), enforcement, the sale of goods, the provision of services and digital content, subscription contracts, sustainability and unfair commercial practices. Background Consumer protection law in the UK stems partly from assimilated EU law and partly from UK-specific law. In many respects, Brexit had a more limited immediate effect on consumer protection because regulatory fragmentation already existed across EU Member States, and traders selling to consumers in the EU were used to taking account of particular requirements in...
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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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