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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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The Bribery Act 2010 ( BA 2010) criminalises: offering or giving a bribe to another person (active bribery) requesting, agreeing to receive, or accepting a bribe (passive bribery) bribing a foreign public official for a business or commercial organisation only, failing to prevent bribery The purpose of this Practice Note is to present a general overview of the active and passive bribery offences in BA 2010, ss 1 and 2, together with the offence of bribing a foreign public official under BA 2010, s 6; in essence, the giving or receiving of bribes. It does not include a synopsis of the corporate offence of failing to prevent bribery, which is dealt with in Practice Note: Failure to prevent bribery—the offence. This Practice Note should be considered alongside Practice Note: The Bribery Act 2010—an introductory guide. BA 2010 came into force on 1 July 2011. Conduct occurring prior to...
This Practice Note highlights key distinctions between adjudication and litigation, arbitration, mediation and expert determination Litigation Adjudication offers a rapid, provisional, interim route to resolve disputes; its outcome is binding until finally settled by arbitration, litigation or agreement. The principles of natural justice that are fundamental in litigation also apply in adjudication. However, within adjudication, observance of natural justice yields to the overriding need for a determination within a very limited period. See Practice Note: Breach of natural justice in adjudication. Confidentiality In litigation the court’s judgment is public. Adjudicators’ decisions rarely reach the public domain because they carry little authority in other proceedings. In addition, parties to adjudication can enter into a confidentiality agreement. Procedure Litigation is controlled by the Civil Procedure Rules. For adjudication, the governing legislation—covering, among other things, timetable and process—is Part II of the Housing Grants, Construction and Regeneration Act 1998 and, where...
Standby letters of credit Originating in the US as a means to bypass the prohibition on domestic banks issuing guarantees, standby letters of credit were developed to fill that gap. Outside the US, parties more commonly opt for an on demand guarantee or bond (see Practice Note: On demand guarantees and bonds) rather than a standby letter of credit. A standby letter of credit belongs to the broader category of letters of credit. What unites all letters of credit is a bank’s promise to pay the beneficiary a defined sum within a stated period against presentation of specified documents that comply with the credit’s terms. Letters of credit fall into two main forms: commercial letters of credit (also called traditional letters of credit) standby letters of credit (also called standby credits) The intended purpose of the credit determines which type applies......
This Practice Note It sets out what a smart legal contract (often called a smart contract) is, both as a technological tool and as a binding legal device, and summarises the Law Commission’s guidance to the UK government, which found that the existing UK legal framework can enable and underpin the use of smart legal contracts. It outlines the legal concepts relevant to contract formation, form, formalities and interpretation under UK law, and contrasts their conventional application with how, according to the Law Commission, they might apply to the principal categories of smart legal contract. The Practice Note covers: • What is a smart legal contract? • Distributed ledger technology ( DLT) • Enforceability under UK law • The formation of smart legal contracts • Agreement (including offer and acceptance) • Consideration • Certainty and completeness • Intention to create legal relations •...
Set-off remains a nuanced but significant doctrine across litigation and a wide range of transactions. Both independent set-off and transaction set-off may serve as defences in legal proceedings. For further detail, see Practice Notes: Independent set-off and transaction set-off and Pleading set-off. In commercial contexts, transaction set-off is a key entitlement for a party asserting breach of contract to resist a demand for payment under that contract. Parties to a contract can also make express provision for set-off in their written terms, either widening or curbing the extent of mutual rights to set off. For more information, see Practice Note: Contractual set-off. Within finance deals, contractual set-off, insolvency set-off and banker's set-off are often central. For more information, see Practice Note: Set-off in finance transactions. The construction industry also relies on set-off to help regulate cash flow. For more...
This Practice Note reviews the alternative three-year limitation period in section 14A of the Limitation Act 1980 ( LA 1980), which extends the timeframe for commencing a claim by reference to the claimant’s knowledge of the material facts It identifies: the circumstances in which the provision is engaged the nature of the requisite knowledge the principle that the claimant is fixed with constructive knowledge of specified matters It also outlines the 15-year long-stop under LA 1980, s 14B for negligence actions that do not concern personal injuries. For detailed guidance on considerations relevant to construction disputes and building-defect matters, see: Defects in construction projects—overview. For wider guidance on LA 1980 and links to related practical materials, see:...
STOP PRESS The Economic Crime and Corporate Transparency Act 2023 ( ECCTA 2023) obtained Royal Assent on 26 October 2023. Part 1 of ECCTA 2023 comprises a significant suite of measures that bolster the function of Companies House and increase the transparency of UK corporate entities, furthering the openness of UK corporate bodies. The ECCTA 2023’s provisions will be introduced gradually over time, over an extended period. Numerous elements of the statute depend on detailed secondary legislation and guidance, alongside the development of fresh technical systems and tools to deliver the changes. For further details, see Practice Notes: The Economic Crime and Corporate Transparency Act 2023—what Banking & Finance lawyers need to know and The Economic Crime and Corporate Transparency Act 2023—tracker. This Practice Note draws out the practical distinctions between legal entities in Scotland and those in England and Wales. It also addresses the legal...
This Practice Note examines retention of title clauses, also described as reservation of title, ROT or Romalpa clauses. It reviews how these clauses may safeguard a creditor-seller against a debtor-buyer’s insolvency, as well as their limits. It outlines the principal features of such clauses and distinguishes between basic and extended forms, including ‘all monies’ and ‘proceeds of sale’ provisions. It also addresses practical issues around incorporating ROT terms, enforcement, and other protective avenues open to a seller. Simple retention of title clauses Extended retention of title clauses, including ‘all monies’ and ‘proceeds of sale’ clauses What is a retention of title ( ROT) clause? At its most straightforward, a retention of title clause is a contractual term enabling the seller to keep title to goods it has supplied until the buyer has paid in full or, where permitted, resold them to a third party (...
Scope of restraint of trade clauses When a party exits a joint venture yet the venture’s operations carry on, those who stay may wish to stop the leaver exploiting insights and relationships gained while part of the venture. This can be achieved by adding a term to the joint venture agreement that bars the leaver from establishing a competing enterprise against the joint venture business. Ordinarily, such a provision is made up of several distinct elements, each addressing a specific restriction in detail......
This Practice Note explains when a rectification claim may be suitable, what you must prove to succeed, and which evidence may be admissible in support. What is rectification? Rectification is an equitable remedy intended to correct a document so that it reflects the parties’ true intentions. When contracting, the parties may have shared a common intention about the meaning of their agreement at the time of drafting, yet that intention is not captured in the wording; ie it diverges from the objective meaning of the contractual document as determined in accordance with the rules of contract interpretation (on which, more generally, see Practice Note: Contract interpretation—rules of contract interpretation). In those circumstances, a claim for rectification may be appropriate. As Hildyard J observed in Procter & Gamble v Svenska Cellulosa, the purpose of rectification is not to vary, modify or extend the bargain; it is to reform the...
Appointing a receiver offers creditors and certain other parties a means to safeguard their interests in a company’s assets. This note outlines the available forms of receivership and the key consequences of a receiver being appointed. For access to materials within the Receivership subtopic, refer to: Receiverships—overview. The following features apply across all receivership types: A company does not have to be insolvent to enter receivership Other creditors may still pursue claims despite a receiver being appointed During the receivership, the company’s dealings with property covered by the appointment are curtailed Receivership does not automatically lead to liquidation (the winding up of its affairs) Further points specific to particular receivership forms are outlined below. Law of Property Act ( LPA)/fixed charge receiver Under the Law of Property Act 1925 ( LPA 1925), a mortgagee may appoint an LPA...
ARCHIVED: This Practice Note has been archived and is no longer maintained. It examines restitutionary claims for quantum meruit (value of services) and quantum valebat (value of goods): the relevant principles, the situations in which such claims may arise, and how to assess the value of any benefit conferred in those cases. When is quantum meruit and quantum valebat relevant? Claims in quantum meruit (value of services) and quantum valebat (value of goods) may emerge in a wide range of circumstances, from gaps in contractual terms on payment to the absence of any contract at all ( Serck v Drake & Scull). For specific guidance on the interplay between quantum meruit/valebat claims and claims for unjust enrichment in the context of contractual relationships, see Practice Note: Unjust enrichment and contracts—failure of basis claims [...
This Practice Note condenses the law, guidance and practical approach to executing simple contracts and deeds. It highlights the main distinctions between deeds and simple contracts, pinpoints those transactions that must be effected by deed, and outlines the execution formalities for both. It also covers the need for signature, use of counterparts, dating, smart legal contracts, virtual execution and electronic signatures. We have created a comprehensive, interactive collection to help users recognise and navigate the concepts and recurring issues that arise when executing documents. Each section or phase provides practical guidance, precedent-style clauses and Q& As relevant to that stage. For further information, see: Execution collection. Creating contracts A contract is a binding agreement that confers rights and imposes obligations on two or more parties. There is extensive case law on contract principles which is not examined in detail here. Put simply, for a...
This Practice Note explores outsourcing within the insurance market. The related documents pod to the right links to a suite of Practice Notes that deliver broad, practical guidance on commercial outsourcing in general. Outsourcing in insurance Outsourcing has grown markedly across insurance in recent years. Where once insurers largely relied on binding authority arrangements limited to underwriting risk and handling claims, the rise of technology has driven expanded use of third‑party providers. A wide range of activities can now be externalised, including: form processing claims call handling auditing data collection the hiving off of entire books of business (for instance, life portfolios, whose long‑tail profile may require record retention and claims handling for decades after acquisition) Whilst outsourcing can and does deliver advantages for insurers and reinsurers, it also engages numerous legal and regulatory duties when functions are placed with third...
Practice Note This Practice Note examines how the English courts approach the meaning and effect of a jurisdiction agreement (also referred to as a choice of court agreement) under English common law. It sets out the elements required for a valid jurisdiction agreement and the courts’ general method for construing these provisions. Matters addressed include whether a dispute falls within the clause’s ambit and how the jurisdiction promise interacts with the wider contract, covering separability and the position where the contract is alleged to be void or voidable. The Note also considers the courts’ approach to jurisdiction agreements contained in related contracts, as well as how conflicting jurisdiction provisions are handled. In addition, it reviews the use of jurisdiction clauses in an underlying contract for the purposes of settlement disputes, and the effect of an English law clause where no...
Whether a party can successfully rely on a force majeure clause hinges on the exact language used, the deal’s commercial setting and background, and the particular facts surrounding the asserted force majeure event and the alleged hindrance to contractual performance. For more detailed guidance, see Practice Notes: • Force majeure—consequences and contract discharge • Force majeure clause analysis—a practical guide. There is, however, some general direction that can be taken from the authorities, with the principal ones outlined below. For commentary on the doctrine of frustration, often examined alongside force majeure, see Practice Note: Discharge by frustration. ‘ Acts of God’ decisions are listed below... Case details and analysis Nature of dispute, key issues considered; Event; Result RTI Ltd ( Respondent) v MUR Shipping BV ( Appellant), 15 May 2024, Supreme Court, [2024] UKSC 18 News Analysis: LNB News...
This Practice Note considers exclusion and limitation of liability in business-to-business ( B2B) contracts. This Practice Note offers guidance on the common law and statutory controls that govern exclusion and limitation of liability clauses (also described as limitation of liability clauses, limitation clauses, exclusion of liability clauses, exclusion clauses and exemption clauses), including the Unfair Contract Terms Act 1977 ( UCTA 1977) and the Misrepresentation Act 1967 ( MA 1967). It identifies which provisions amount to exemption clauses and sets out three central matters to address when drafting them or assessing them in a dispute: incorporation construction statutory controls It also outlines the courts’ treatment of attempts to exclude or restrict liability for certain breaches (eg fundamental breach) and for different heads of loss (eg direct loss, indirect and consequential loss, loss of profits, loss of use and loss of data). It notes common...
This Practice Note This Practice Note offers practical guidance on correctly and properly executing simple contracts and deeds for Law of Property Act receivers ( LPA receivers) or fixed charge receivers. Appointing an LPA/fixed charge receiver is a remedy available to the chargee (ie the holder of security over property) and is the remedy of a chargee. LPA/fixed charge receivership is not an insolvency process and does not necessarily, of itself, mean the chargor (ie the person who granted the security) is insolvent. An LPA/fixed charge receiver must be a natural person (ie a company cannot be a receiver) but need not be an insolvency practitioner or hold any other particular qualification. Unlike a liquidator, administrator or trustee in bankruptcy, an LPA/fixed charge receiver does not take control of the company as a whole (and, for an individual, does not control the...
This Practice Note sets out practical steps for arranging the execution of a document by an individual who has an impairment or disability, or where the individual and their adviser do not share the same language. For overarching guidance on executing contracts and deeds, see the following Practice Notes: Deeds Executing documents—deeds and simple contracts We have also created a comprehensive, interactive collection to help users recognise and navigate key concepts and frequent issues in document execution. Each stage includes practical guidance, precedent clauses and Q& As tailored to that phase. For further details, see: Execution collection. Inability to read or comprehend documents in writing An impairment may prevent a signatory from reading a document themselves, for instance where they are partially sighted or blind. It may equally be that the signatory does not read or speak the language used in the...
This Practice Note sets out practical guidance on the correct execution of simple contracts and deeds by limited liability partnerships ( LLPs). See also Precedents: Execution clause—limited liability partnership—contract and Execution clause—limited liability partnership—deed. For commentary on establishing an LLP, see Practice Note: Forming a limited liability partnership. We have created a collection that serves as a comprehensive, interactive tool to help users pinpoint and navigate the concepts and common issues that arise when executing documents. Each stage or phase supplies practical guidance, precedent clauses and Q& As relevant to that part. For further details, see: Execution collection. The law Before 1 October 2009, the execution formalities applicable to LLPs were contained in the Companies Act 1985. From 1 October 2009, LLPs have been governed by the Companies Act 2006 ( CA 2006) by virtue of, and as modified by, the Limited Liability...
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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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