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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 taken effect. Procurements launched on or after that date must follow PA 2023, while those started under earlier regimes (including the Public Contracts Regulations 2015, Utilities Contracts Regulations 2016, Concession Contracts Regulations 2016, and Defence and Security Public Contracts Regulations 2011) must continue to be run and managed under those rules. The Cabinet Office has also refreshed its standard contract suites, templates and guidance for the government’s Model Services Contract, Mid- Tier Contract and Short Form Contract. These revised 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 interim, see News Analysis: Procurement Act 2023 ‘go live’—what happens next?, and Government model contracts updated for...
This Practice Note considers agreements to agree, explaining why a promise to settle particular contractual terms at a later date has traditionally been treated as unenforceable. It also examines those situations where courts have nevertheless upheld contracts as binding, despite an apparent lack of certainty over fundamental terms. Principle Traditionally, contracts that contain an agreement to agree future contractual terms have been viewed as too uncertain to enforce. Whether a binding contract exists is assessed by an objective test, namely: on the evidence, a reasonable person would conclude the parties were in agreement and intended to create legal relations (the parties’ own views are disregarded), and the contract is sufficiently certain to be enforceable. Agreement For a contract to be binding, its terms must be definite enough for the court to give them practical effect and, in particular, those terms must be enforceable without the need for any further...
This Practice Note outlines the character and extent of an agent’s authority, bestowed by the principal, and recognises certain constraints and qualifications imposed upon that authority in practice. It reviews the varieties of an agent’s authority, such as actual, apparent and customary authority, and explains their operation. It also addresses authority conferred through a power of attorney arrangement. It examines the consequences of an agent exceeding its authority, whether such acts bind the principal in law, and the remedies open to a principal when an agent goes beyond its mandate, including options for redress. Authority of agent An agent’s authority derives solely from its own principal. In commercial contexts, the scope of authority principals grant to agents typically comprises one or more of these functions and activities: to introduce, conclude, or otherwise handle contracts between the principal and customers. An agent is not, of itself, empowered to bind a...
This Practice Note explores issues around an agent’s authority to enter contracts for a principal and, relatedly, determining which party should sue or be sued where an agency relationship exists. For broader guidance on the formation of an agency, see Practice Note: Nature and types of agency. Who is liable? Agent or principal—general position In Re Lendy, the judge distilled the position on agent and/or principal liability where an agent acts for their principal: The default rule is that the contract is that of the principal and only the principal can sue or be sued. However, this can be displaced if, considering the nature and terms of the agreement and the surrounding circumstances, the parties’ intention points to a different outcome. If an agent signs a contract expressly as agent, they are taken not to have contracted personally unless it is clear from other...
Statutory framework for advertisement control In England and Wales, advertisement control forms an integral element of the wider development control regime. The system is governed by the Town and Country Planning Act 1990 ( TCPA 1990). In England, this is supplemented by the Town and Country Planning ( Control of Advertisements) ( England) Regulations 2007, SI 2007/783 (the English Regulations), and in Wales by the Town and Country Planning ( Control of Advertisements) Regulations 1992, SI 1992/666 (the Welsh Regulations). What is an 'advertisement'? The system applies to a very wide spectrum of advertising material. Under TCPA 1990, s 336, an advertisement includes any word, letter, model, sign, placard, board, notice, awning, blind, device or representation, whether illuminated or not, that is in the nature of, and used wholly or partly for the purposes of, advertisement, announcement or direction. It further includes any hoarding or similar...
This Practice Note sets out a glossary of terms commonly used within the context of adtech and programmatic advertising A | B | C | D | E | F | G | H | I | J | K | L | M | N | O | P | Q | R | S | T | U | V | W | X | Y | Z Ad Ad is short for advertisement. Advertisements are used to promote products or brands with the aim of increasing brand awareness, brand engagement and/or sales. The particular advertisement displayed on a website is termed the creative. Ad campaign An ad campaign (advertising campaign) comprises a set of ads carrying a consistent message and pursuing a common objective. When planning an ad campaign, advertisers assess budgets, target audiences, which advertising channels will be used, the objectives the campaign is...
This Practice Note considers the legal and practical issues when entering into a subcontract or authorising subcontracting: What is subcontracting? When may subcontracting be allowed? The legal consequences of subcontracting Subcontractor’s liability for the contractor’s consequential loss Subcontractor’s liability to the customer What is subcontracting? While contractual rights and benefits are, unless expressly restricted, generally capable of assignment, contractual duties or burdens are not. Nonetheless, in some cases those obligations can be performed vicariously through subcontracting. Subcontracting is the delegation by the main contractor of part or all of its obligations under its contract with the customer to a third party (the subcontractor) for the subcontractor to perform. Where such vicarious performance is permitted, the contractor’s liability under the main contract does not pass to the subcontractor. The contractor remains answerable to the customer for any non-performance by the subcontractor, even if the customer has agreed to the...
This Practice Note discusses the personal nature of an agency relationship and the circumstances in which the agent may delegate its authority to a third party or sub-agent Because agency is inherently personal, the default position is that an agent must not pass to another the performance of its powers or obligations. Delegation may nonetheless occur if the principal consents or a statute confers such authority. Authority to delegate can also be inferred in particular circumstances, such as: where the agent’s role does not call for personal expertise or trust, and the tasks could adequately be carried out by someone else by established custom or usage of the trade where the principal knows, or can fairly be taken to know, that the agent plans to delegate and raises no objection where the character of the agency demands partial or...
Mitigation applies to all damages claims The notion that a claimant should mitigate their loss applies to every civil claim for damages, whether brought in contract, tort, or other recognised circumstances, although much of the case law on mitigation has arisen from contractual disputes. Consequently, even once causation and remoteness are established—subjects covered in practice notes on contractual breach, and on tort and negligence—the amount recoverable may still be affected if the claimant has not mitigated their loss. In essence, the innocent party cannot obtain damages for loss they could have avoided but did not, whether through unreasonable conduct or by failing to act. The key issue in mitigation is which steps it was reasonable, and which it was not, for the claimant to take. This is often referred to as the duty to mitigate or the rule on...
This Practice Note explores the doctrine of mistake in contract law. It surveys common, mutual and unilateral mistake, errors as to identity, and mistake regarding the signed document (non est factum). It also considers the effect of each type on the contract and how mistakes can be addressed by rectification or by construction. For guidance on dealing with errors in the execution of documents, see Practice Note: Deeds— Failure to comply with formalities and other defects and our Execution collection, in particular, The Basics— Q& As— Mistakes in executing documents. For further help where parties choose to fix a mistake by agreeing an amendment to the operative parts of a contract, see Practice Note: Contract variation. What is a mistake? A mistake is a wrong belief held by one or both parties at the point of contract formation. A mistake may relate to the: subject matter or the...
Scope and purpose This Practice Note is intended to aid the review and/or negotiation of a consignment stock agreement, and sits alongside the Precedents: Consignment stock agreement—pro-customer and Consignment stock agreement—pro-supplier. Under a consignment stock set-up, the seller of goods (the consignor) places a stock of goods with the buyer (the consignee) while retaining title until the point the buyer takes or appropriates items for its own use. The buyer typically keeps the seller’s stock on its own premises and may draw on it as needed. This differs subtly from a standard supply on retention of title terms: with consignment stock (absent contrary wording), no contract of sale for identified consigned goods arises until the buyer appropriates them from the stock for use, whereas in a typical supply the contract usually exists before delivery Types of consignment stock...
Uniform rules concerning the contract for international carriage of goods by rail ( CIM): Encyclopaedia of Forms and Precedents [43] This Practice Note summarises the legal position on the carriage of goods by rail as set out in the Uniform Rules Concerning the Contract of International Carriage of Goods by Rail ( CIM). It covers: the scope of application of CIM; the contract of carriage governed by CIM; the apportionment of liability under CIM; time bars; jurisdiction. It explains each of these elements within the framework of CIM. It also sets out time bars and jurisdiction under CIM, and the basis on which liability is shared. International rail carriage is regulated by the Uniform Rules Concerning the Contract of International Carriage of Goods by Rail ( CIM) (the Rules). The Rules are made under the Convention concerning...
Commercial contracts— Germany— Q& A guide [ Archived, 2022 edition] This Practice Note offers a jurisdiction-specific Q& A overview of commercial contracts in Germany, issued as part of the Lexology Getting the Deal Through series by Law Business Research (published: January 2022). Authors: Lutz Abel Rechtsanwalts Part G mb B— Marius Mann; Benjamin Baisch; Björn Weidehaas 1. Is there an obligation to use good faith when negotiating a contract? Yes. Good faith is set out in section 242 of the German Civil Code ( BGB) and is a basic tenet of German law. It imposes a duty on both contracting parties to fulfil their obligations faithfully and sincerely, taking customary practice into account. Nevertheless, where there is no breach of specific provisions of the BGB or the German Commercial Code ( HGB), enforcing a claim that relies solely on the general clause in section 242 BGB is...
This Practice Note addresses identifying a fiduciary, fiduciary duties and obligations, the no conflict rule, the no profit rule, a fiduciary's duty of confidence, and the remedies available for breach of fiduciary duty. Who is a fiduciary? There is no definitive catalogue of relationships that give rise to fiduciary obligations at common law in every situation universally. Certain relationships are inherently fiduciary, eg trustee and beneficiary, solicitor and client, principal and agent, business partner and co-partners, together with mortgagor and mortgagee. The obligations of some fiduciaries have been set out in statute; for instance, trustees owe a statutory duty of skill and care under section 1 of the Trustee Act 2000 ( Tr A 2000), and directors' relationships with their companies are addressed in the Companies Act 2006 too. For guidance on directors' fiduciary duties, see Practice Note: of directors for further detailed...
Businesses commonly rely on joint ventures to break into fresh markets and to design, develop, and launch new products. This notion spans a wide array of scenarios and arrangements, including: structural setups that establish or alter the economic control of a given legal entity: joint venture companies themselves partnerships between participants alterations to existing shareholder control non-structural joint ventures: contract-based joint projects informal (not documented) collaborations For many joint venture arrangements, the extent of 'control' each party holds is often pivotal—though its meaning can be understood differently in varying contexts. This is...
This guide explains the use of e-signatures across a range of international jurisdictions. A comprehensive table provides a quick-reference overview of whether, and in what ways, e-signatures are deployed in different countries. More extensive detail on every overseas jurisdiction listed is provided in the sections that follow. For detailed information on executing contracts in multiple jurisdictions, see Practice Note: Execution of contracts—jurisdictional guide. For guidance on the execution of deeds in different jurisdictions, see Practice Note: Execution of deeds—jurisdictional guide. For insight into how contracts are formed across various jurisdictions, see Practice Note: Contract formation—jurisdictional guide. For information concerning the execution of documents under Scots law, see Execution— Scotland—overview. Please note that this is an introductory resource only, and that local advice from suitably qualified legal professionals in the relevant country should be obtained where...
IP rights only carry real weight when they generate revenue for the company. Even where they are already in use, a structured exploitation programme can unlock extra value. This Practice Note provides hands-on guidance for businesses on making the most of their IP rights. It explains how to run an IP audit and build a coherent exploitation strategy. It also outlines the principal routes to exploitation, including assignment, licensing, taking security over IP, and using alternative ownership models. In addition, it highlights the essential provisions to include in assignments, licences and security instruments, and offers pointers on monitoring and enforcing IP so that its worth is preserved... What are the key IP rights? A business will typically hold several types of IP, some registered and others unregistered or arising automatically. The main IP rights a business is likely to own include: Trade marks...
This Practice Note sets out the practical measures a business can use to ensure its standard-form terms and conditions are successfully incorporated into both contracts and agreements. It offers direction on securing the inclusion of one party’s standard terms and conditions within a contract, on how to succeed in the battle of the forms, and on resisting efforts by the counterparty to import their own standard terms and conditions into the agreement. See also: Effectively incorporating standard terms and conditions—checklist. For guidance on the purpose, benefits and drawbacks of using standard terms and conditions, see Practice Note: Standard terms and conditions—advantages and disadvantages......
What is a dispute resolution clause? Many commercial contracts include a dispute resolution clause, sometimes labelled an ‘ ADR clause’. Alternative dispute resolution ( ADR) refers to resolving a disagreement without commencing court proceedings. The Commercial Court and the Circuit Commercial Court use the expression negotiated dispute resolution ( NDR) for processes that settle disputes outside the courts, but for ease, this Practice Note adopts the term ADR. The aim of inserting a dispute resolution clause is to give the parties a clear framework for handling any dispute that may emerge under their agreement. Such a clause sets out how conflicts between the contracting parties will be dealt with and will frequently oblige them to engage in a specified ADR method or methods before pursuing litigation or arbitration. For the various ADR options, see Practice Note: Which form of ADR? For general...
In breach of contract disputes, the central enquiry is whether the term said to be broken empowers the innocent party to: terminate the contract for breach and recover damages (or choose to affirm the contract, notwithstanding the breach, and still pursue damages), or seek damages The outcome hinges on whether the relevant term operates as a condition or a warranty, or whether the character and effects of the breach are sufficiently grave to amount to a repudiation of the agreement. This is the purpose of the classification of terms in contractual disputes. For guidance on distinguishing terms from representations, and on when and how express and implied provisions are incorporated into a contract, see Practice Notes: Contract interpretation—when is a statement a representation or a contractual term? Contract...
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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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