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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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STOP PRESS From 24 February 2025, the core provisions of the Procurement Act 2023 ( PA 2023) have come into effect. Any procurement launched on or after that date must follow PA 2023, whereas those started under the prior regime must continue to be run and overseen under that framework. Earlier legislation includes: 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 collections, 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 revised shortly to reflect these changes. In the meantime, see News Analysis: Procurement Act 2023 ‘go live’—what happens next?, and...
STOP PRESS: From 24 February 2025, the core provisions of the Procurement Act 2023 ( PA 2023) take effect. Competitions launched on or after that date must proceed under PA 2023, while procedures commenced pursuant to the earlier regimes—the Public Contracts Regulations 2015 ( PCR 2015), the Utilities Contracts Regulations 2016, the Concession Regulations 2016, and the Defence and Security Public Contracts Regulations 2011—must continue to be run and overseen in accordance with those rules. See Practice Note: Introduction to the Procurement Act 2023— PA 2023. PCR 2015 as assimilated law PCR 2015 constitute EU-derived domestic legislation and, accordingly, are assimilated law under sections 2 and 6 of the European Union ( Withdrawal) Act 2018. For practical guidance on the status and interpretation of assimilated law, see Practice Note: Assimilated law. Public procurement—the acquisition of goods, services and works by the public...
STOP PRESS: From 24 February 2025, the core provisions of the Procurement Act 2023 ( PA 2023) apply. Any procurement launched on or after that date must proceed under PA 2023, while procedures begun under earlier regimes must continue to be conducted and managed in line with those rules. See Practice Note: Introduction to the Procurement Act 2023— PA 2023. Public Contracts Regulations 2015 ( PCR 2015) Utilities Contracts Regulations 2016 Concession Regulations 2016 Defence and Security Public Contracts Regulations 2011 PCR 2015 as assimilated law PCR 2015 are EU-derived domestic legislation and therefore form assimilated law under sections 2 and 6 of the European Union ( Withdrawal) Act 2018. For practical guidance on the status and interpretation of assimilated law, see Practice Note: Assimilated law. Distinction between selection and award criteria This Practice Note focuses on award criteria and the various...
What is the best value duty? The best value duty ( BVD) obliges a local government organisation to show that it has arrangements to secure continuous improvement in the way it exercises its functions, in other words, how it delivers its work. In practice, this typically covers how the authority manages core responsibilities such as: balancing its budget providing statutory services, including adult social care and children’s services The BVD was created by the Local Government Act 1999 ( LGA 1999). That Act remains the governing legislation, though it has been substantially amended, particularly by the Local Government and Public Involvement in Health Act 2007 ( LGPIHA 2007). Much of the detail on what BVD is and how it should be applied in practice is set out not in the LGA 1999 itself but in statutory guidance, which is issued from time to time under...
This Practice Note explores when property, title and risk transfer from a seller to a buyer in a business-to-business ( B2B) sale of goods. The moment of transfer is shaped by four elements: the nature of the goods, the parties' intention, the contractual terms governing the sale, and the provisions of the Sale of Goods Act 1979 ( SGA 1979). In a contract for the sale of goods, the buyer's obligation is to accept the goods and pay the price, and the seller's obligation is to deliver the goods to the buyer in accordance with the agreed terms of the contract of sale. Any sale of goods between a seller and a buyer therefore involves the movement of property, title and risk. Precisely when those pass will depend upon the character of the goods, what the parties intended, the terms to which the sale is...
How to Guide This Practice Note serves as a practical ‘how to’ for assessing exclusion and limitation of liability provisions in B2B commercial contracts, directing readers to relevant material. It points to topics that may matter, such as the definition of an exclusion and limitation clause, initial checks, and core components (parties, scope, monetary caps, excluded heads of loss, uncapped liabilities, indemnities, liquidated damages, warranty exclusions, terms and conditions, and limitation periods), alongside related clauses, party-favouring positions, and hands‑on considerations. For the commercial lawyer, these provisions are a tool to calibrate a client’s contractual risk. They are frequently hard fought in most agreements and scrutinised when disputes arise. The statutory framework governing such terms is intricate, and case law shaping their construction is subtle. Mastery of the underlying legal context is vital when negotiating exclusion and limitation wording. Drafting that is...
Practice Note This Practice Note offers guidance on the principal legal considerations for business to business ( B2B) e-commerce carried out via websites, online platforms, mobile apps and email. It addresses how contracts are formed—including offer, acceptance, incorporation and consideration—and what formalities apply in these environments, such as electronic signatures and maintaining electronic records. It also examines the enforceability of browse wrap (also known as browse-wrap, browsewrap or click free) and click wrap (also known as click-wrap or clickwrap) terms. It further sets out the laws applicable under the Electronic Commerce ( EC Directive) Regulations 2002 ( E- Commerce Regulations 2002), SI 2002/2013, which govern information society services operating in the UK. Where businesses rely on online platforms or m-commerce, the legal questions usually mirror those arising for any website. Accordingly, this Practice Note uses ‘website’ for ease and flags any...
This Practice Note offers practical guidance for commercial lawyers on reducing and averting disputes and litigation in commercial contracts. It outlines options for advising clients who expect or face problems with the performance of their agreements, together with the safeguards to observe where a dispute or litigation cannot be avoided. The focus is on pragmatic considerations around actual or potential breaches in a business-to-business, commercial setting. Renegotiation Novation Informal workarounds Re-interpretation The effect of walking away Termination For a checklist bringing together key content for commercial practitioners advising a business trading in difficult times—including considerations when drafting contracts, building resilience into supply chains, price and payment issues, performance problems, and dealing with disputes—see also: Commercial contracts in difficult...
Updated in January 2025 Introduction Australia’s resilient economy, a talented multilingual labour force, favourable tax settings and a predictable political climate position it as a prime destination for overseas capital. Businesses also benefit from comparatively modest establishment costs, proximity to the Asia– Pacific, a dynamic finance industry, and a time zone bridging the United States market close and Europe’s opening. Before the global coronavirus ( COVID‑19) outbreak, Australia ranked among the quickest‑expanding economies in the Organisation for Economic Co‑operation and Development ( OECD). Relative to many OECD peers, it managed the immediate health and economic shocks of COVID‑19 effectively. As elsewhere in the OECD, though, the short‑run effects of domestic and international stimulus during the pandemic years—together with external influences such as the war in Ukraine and local issues including COVID‑19‑related construction backlogs—have driven stronger inflationary pressures in Australia and prompted a period of firm...
Asset purchase contracts commonly contain seller warranties and indemnities for the buyer’s benefit. Why we need warranties and indemnities From the outset, a buyer in any asset deal is governed by the maxim caveat emptor (let the buyer beware). The buyer will carry out due diligence on the target business to learn as much as possible before entering into the transaction, yet perfect knowledge is not achievable prior to completion. Consequently, the buyer cannot know exactly what is being acquired and must seek protection from the common law position by negotiating suitable contractual provisions in the form of warranties and indemnities. In the absence of warranties or indemnities, and unless the seller has made a misrepresentation during the course of negotiations, the buyer would have no recourse against the seller. Ultimately, warranties operate to allocate risk and liability between the seller and the buyer......
ARCHIVED: This Practice Note has been archived and is not maintained. The UK and EU’s particular proposals for addressing the enforcement of judgments across the EU will be a central concern for UK practitioners. This Practice Note examines how Brexit will affect the enforcement of court judgments in the EU once the UK leaves the bloc. It reviews the existing framework under Regulation ( EU) 1215/2012, Brussels I (recast), sets out the respective stances of the UK and the EU, and evaluates the probable outcomes based on the information currently available. The Note highlights issues that may arise upon the UK’s exit and points to regimes that could support the enforcement of court judgments, including the Hague Convention on Choice of Court Agreements and the Lugano Convention 2007. It provides a concise summary of the current position and the foreseeable scenarios for...
ARCHIVED : This Practice Note is archived and no longer updated. For the 2020 iteration of the rule, refer to: Incoterms® 2020 Rules— CPT Carriage paid to The ICC materials are reproduced here with the authorisation of ICC Publishing SA. These and additional ICC titles can be obtained 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, as well as www.iccwbo.org. Incoterms® 2010 rules were superseded by Incoterms® 2020 rules, effective 1 January 2020. For the CPT Incoterm in force from 1 January 2020, consult Practice Note: Incoterms® 2020 Rules— CPT Carriage paid to. CPT (insert named place of destination) Incoterms® 2010 Guidance note This rule is suitable regardless of the chosen mode of transport and equally applies when multiple modes are utilised within a single...
ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note outlines the legal framework, guidance and practice concerning the protection of consumers against unfair trading. It examines the principal elements of the Consumer Protection from Unfair Trading Regulations 2008, SI 2008/1277 ( CPUTR 2008)—notably unfair commercial practices such as misleading acts, deceptive omissions, aggressive conduct and prohibited practices—and reflects on the amendments that the Digital Markets, Competition and Consumers Act 2024 ( DMCCA 2024) is set to introduce. It also touches on the criminal offences under CPUTR 2008, mechanisms for enforcement, and consumers’ private rights to redress. As to the DMCCA 2024, in July 2021 BEIS—now the Department for Business and Trade—opened consultation on reforms to competition policy, consumer rights and the enforcement of consumer law......
ARCHIVED: This Practice Note is archived and is no longer maintained. It charted the progress of UK primary legislation introduced as part of the legislative preparations for the UK’s exit from the EU during the 2017–19 Parliament. Following the prorogation of the 2017–19 Parliament on 8 October 2019, the Brexit Bills moving through Parliament that had not yet secured Royal Assent fell, namely: Agriculture Bill Financial Services ( Implementation of Legislation) Bill [ HL] Fisheries Bill Immigration and Social Security Co-ordination ( EU Withdrawal) Bill Trade Bill For further reading, see: Brexit Bulletin—key Bills fall away on prorogation of Parliament, LNB News 09/10/2019 64......
ARCHIVED: This archived Practice Note provides information about the Data Protection and Digital Information Bill introduced to Parliament in March 2023. This bill did not obtain Royal Assent before Parliament was dissolved on 30 May 2024 and consequently dropped from the legislative agenda—see LNB News 29/05/2024 66 and News Analysis: General election announced for 4 July 2024. This Practice Note is supplied for context only and is not updated. For broader developments on data protection reform, see Practice Notes: The Data Protection Act 2018—timeline and UK e Privacy law reform—tracker. This Practice Note outlines principal elements of the Data Protection and Digital Information Bill as published on 6 December 2023 (the Bill), which would have amended: United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR) Data Protection Act 2018 ( DPA 2018) Privacy and...
ARCHIVED: This Practice Note is archived and not maintained. For the 2020 version of the rule, consult Incoterms® 2020 Rules— EXW Ex works. The ICC publications appear 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 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 rules on 1 January 2020. Under the 2020 rules, the DAT term has been replaced by DPU; see Practice Note: Incoterms® 2020 Rules— DPU Delivered at Place Unloaded. DAT (insert named terminal at port or place of destination) Incoterms® 2010 Guidance note This rule applies regardless of the chosen mode of carriage and is equally suitable where multiple modes are used. ‘ Delivered at Terminal’ means the seller completes delivery when the goods, once...
ARCHIVED: This Practice Note is archived and no longer updated. It was originally prepared to reflect the former Vertical Restraints Block Exemption Regulation 330/2010 ( VBER 2010). In the UK, that regime was superseded by the Competition Act 1998 ( Vertical Agreements Block Exemption) Order 2022 ( VABEO) with effect from 1 June 2022. VBER 2010, which had continued in UK law as a retained EU block exemption, lapsed on 31 May 2022 and, from 1 June 2022, was replaced by VABEO. Article 15 VABEO introduced a 12‑month grace period, running to 1 June 2023, to cover pre‑existing vertical agreements in force before 1 June 2022 that, immediately before that date, complied with the exemption criteria under VBER 2010 but did not meet the exemption conditions under VABEO. Accordingly, this Practice Note is provided solely for background. For analysis of vertical agreements under VABEO, see:...
ARCHIVED : This Practice Note has been archived and is not maintained. It sits within a series of archived Practice Notes that collate and summarise notable historic case law rulings and principles concerning public procurement law. The bulk of the entries in this Practice Note are archived decisions, determined before the Public Contracts Regulations 2015 ( PCR 2015) came into force. For details of the latest case law developments, see: UK public procurement case tracker EU public procurement case tracker This Practice Note concentrates on cases linked to procurement procedure. The overarching aim of public procurement law is to open procurement to wider competition and to ensure that tenderers have an equal opportunity to obtain contracts tendered by public authorities. The guiding principles are equal treatment of tenderers and transparency in procedures, so that tenderers know what to expect from the procurement process and have a clear...
ARCHIVED: This archived Practice Note summarised major updates and guidance concerning Brexit and the TMT industry. It is no longer updated and is supplied for context alone. It is arranged under the following headings: New technologies Information technology Internet Data protection Media Advertising, marketing and sponsorship Telecommunications This note does not monitor broader Brexit events; for those, consult Practice Note: Brexit timeline. To follow the advancement of UK statutes introduced as part of preparations for the UK’s departure from the EU, see Practice Note: Brexit legislation tracker. On 31 January 2020 (exit day), the UK stopped being an EU Member State and forfeited its right to take part in the EU’s political bodies and governance frameworks. Under the transitional measures in Part 4 of the Withdrawal Agreement, exit day began an 11-month implementation phase during which, for many purposes, the EU treated the UK as though it remained a Member State. The...
ARCHIVED: This Practice Note This Practice Note has been archived and is not maintained. This commercial tracker monitors the progress of UK legislation (including Bills in progress, Acts in force, Statutory Instruments in progress and Statutory Instruments in force), judgments of the Supreme Court and Court of Appeal, and consultations, calls for evidence and inquiries relating to commercial law in 2025. For developments tracked previously, see Practice Notes: Commercial tracker 2024 [ Archived], Commercial tracker 2023 [ Archived] and Commercial tracker 2022 [ Archived]. This Commercial tracker comprises the following sections: Legislation Bills in progress Acts in force Statutory instruments in progress Statutory instruments in force Cases ...
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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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