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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:
Most recent Practice notes
This Practice Note This Practice Note distils rulings on when restraint of trade provisions (restrictive covenants) in commercial and corporate agreements are enforceable. For fuller detail on restrictive covenants and the restraint of trade doctrine in commercial arrangements, also see Practice Note: Restrictive covenants and restraint of trade in commercial contracts. For a companion Practice Note outlining decisions on the enforceability of post-termination restraints (restrictive covenants) in employment contracts, see Practice Note: Decisions on post-termination restrictions and garden leave in employment contracts. This Practice Note also references certain key judgments reached under EU competition law. From 1 January 2021, EU competition law no longer applies directly in the UK. Where an agreement impacts trade within the UK, Chapter I of the Competition Act 1998 ( CA 1998) will govern. The Chapter I prohibition bans anti-competitive agreements and is modelled on Article 101 of the Treaty on the...
This Practice Note outlines the core principles governing awards of damages in tort actions. It addresses the compensatory purpose of tort damages; separates general from special damages; explains when exemplary (punitive) and aggravated damages may be available in tort; considers restitutionary and ‘user’ damages; sets out the date and method of assessment; deals with interest on tortious awards; and the reduction of damages through contributory negligence and mitigation. It also summarises when damages may be recoverable for a tortious wrong, including negligence. For further reading, see Practice Notes: The remedy of damages—general principles; Loss of chance damages; Claiming damages—tort and contract claims compared. It does not cover damages in clinical negligence or personal injury claims. General principles of liability in tort claims To succeed in a tort claim for damages, a claimant must, on the balance of probabilities, establish that: the...
Part 26A restructuring plans ( RPs) Since 26 June 2020, Part 26A restructuring plans ( RPs) have been in force by virtue of the Corporate Insolvency and Governance Act 2020 ( CIGA 2020). Section 7 and Schedule 9 of CIGA 2020 inserted a new Part 26A into the Companies Act 2006 ( CA 2006), entitled ‘ Arrangements and Reconstructions for Companies in Financial Difficulty’. The framework for their use is informed by: the applicable Practice Statement (see Practice Note: The Practice Statement for Part 26 schemes and Part 26A restructuring plans (2025)); and the Explanatory Notes, which are admissible to assist with interpretation without any need to show that the legislation is ambiguous or unclear (per Snowden J, as he then was, in Re Virgin Atlantic Airways, applying Re Flora v Wakom ( Heathrow) Ltd). These RP provisions represent a permanent reform of the UK’s...
The Insolvency Act 1986, s A1 ( IA 1986) The Insolvency Act 1986, s A1 ( IA 1986) sets out a mechanism allowing directors of insolvent companies, or those likely to become insolvent, to secure a moratorium. The initial period is a 20 business day period, with scope for extension in defined circumstances. The regime is underpinned by the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, r 1A.1. Its purpose is to give otherwise viable businesses breathing space to reorganise or attract fresh investment without the pressure of creditor enforcement. The statutory architecture for this moratorium was added to IA 1986 by the Corporate Insolvency and Governance Act 2020 ( CIGA 2020), expedited in response to the coronavirus pandemic. An insolvency practitioner acts as ‘monitor’, supervising compliance, while the directors continue to manage day-to-day operations, albeit within...
rules on interpreting contracts (agreements) This Practice Note outlines the rules for construing contracts and their terms, reviewing leading cases— Rainy Sky v Kookmin, Arnold v Britton, and Wood v Capita—together with the principal canons of construction. It should be read alongside the Practice Notes: Contract interpretation—the guiding principles; and How to approach a contractual interpretation dispute—a practical guide. Lord Hoffmann’s five principles in ICS v West Bromwich Building Society (see Practice Note: Contract interpretation—the guiding principles) provide the central approach to interpretation, which is then supported by general rules or guidelines (often called canons of construction) used to help determine the meaning of a written agreement. This Practice Note examines the most significant of these, namely: the whole document is relevant commercial sense (business common sense) and avoiding an unreasonable outcome cutting down rights and remedies saving the...
This Practice Note outlines the consumer remedies and avenues of redress available when consumer protection legislation is breached. It covers rights in relation to faulty goods, services and digital content under the Consumer Rights Act 2015 ( CRA 2015), cancellation rights for distance and doorstep contracts, the private right of redress, and mechanisms for card payment redress. It also highlights other private actions, such as for breach of contract or statutory duty, and collective proceedings that may benefit consumers. For civil or criminal enforcement, see: Consumer remedies and enforcement—overview. For an introduction to the regulatory bodies able to enforce some of the remedies discussed in this Practice Note, see Practice Note: Consumer protection regulators—introduction. Remedies for faulty goods Under the CRA 2015, consumers benefit from statutory rights for goods purchased from traders. The principal rights require that goods are of...
This playbook provides guidance for drafting and negotiating a confidentiality agreement (also known as a non-disclosure agreement or NDA) from a pro-discloser position. It sets out preferred stances and alternative fallback options for the clauses most often contested in these agreements. The template suits solicitors representing the discloser, whether operating in-house or working in private practice. Users should adapt and tailor it as needed to address client-specific issues and safeguard the client’s interests in full. The level of risk referenced throughout may vary depending upon the particular client. Be aware it omits fallbacks for boilerplate clauses, for situations where confidential information comprises personal data, and for detailed intellectual property rights provisions. For a complete index of related confidential information materials, see: Confidential information—overview. For the underlying template agreement, consult: Precedent: Confidentiality...
Nature of rights under the Consumer Protection Act 1987 It is essential for practitioners to grasp the difference between the rights granted by the Consumer Protection Act 1987 ( CPA 1987) and those arising under the Consumer Rights Act 2015 ( CRA 2015). Whereas CRA 2015 regulates the contractual relationship between seller and consumer, CPA 1987 affords recourse against ‘producers’. CPA 1987 does not curtail a claimant’s scope to pursue alternative remedies against that producer (or any other relevant person in the supply chain), for example in negligence or by alleging breach of contract. Accordingly, in practice a claimant may, where appropriate, advance multiple causes of action. It is therefore common for overlapping routes to be pleaded together within the same proceedings, often. See Practice Notes: Product liability—claims in negligence and Product liability—claims in contract. For further guidance on CRA 2015, see Practice Note:...
This practical guidance relates to the pre- Procurement Act 2023 regime This Practice Note addresses public procurement exercises launched before the Procurement Act 2023 ( PA 2023) took effect on 24 February 2025. Any in-scope procedure started on or after that date is subject to PA 2023. Through the Act’s transitional and savings provisions, the prior public procurement regimes continue, so far as required, to enable contracting authorities to finalise and manage procurements commenced before PA 2023 commenced (ie procurements already under way). This Practice Note should be considered against that backdrop. For background reading, see Practice Note: Introduction to the Procurement Act 2023— PA 2023. Additional practical guidance on PA 2023 appears in a separate subtopic, see: Procurement Act 2023—overview. Implications of changes during the public procurement procedure This Practice Note sets out when a contracting authority may adjust its award criteria during a...
Hague- Visby Rules (the Rules) This Practice Note outlines the Hague- Visby Rules, international rules governing the carriage of goods by sea, enacted into English law by the Carriage of Goods by Sea Act 1971 ( CGSA 1971). It summarises the scope of the Rules, the carrier’s obligations, limits of liability and available immunities under the Rules, and the applicable time bars. The Rules are contained in three international instruments: the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (1924) ( Hague Rules) the Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (1968) ( The First Visby Protocol) the Protocol Amending the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (1979) ( The Second Visby...
This Practice Note This Practice Note outlines the legal principles applicable to charterparties in arrangements for the seaborne carriage of goods. It summarises the core characteristics of voyage, time, bareboat and slot charters, together with the remedies in damages for breach associated with each category. Concluding remarks provide pointers on current legal developments affecting charterparties. Every day, a substantial quantity of cargo travels by sea, bringing into play, on a daily basis, the terms and obligations found in numerous charterparties. That commercial activity, coupled with the inherent hazards of maritime transport, fosters the emergence of disputes in this fast-moving field of law. A charterparty (or 'charter') is a contractual instrument that records the conditions upon which a shipowner permits others to employ the vessel, whether needed for a defined period or for a particular voyage agreed between the parties and set out in the...
This Practice Note examines statements—spoken or written—made by one party to another before a formal contract is concluded, and outlines the situations in which such a statement might be regarded as forming part of the contract or giving rise to other remedies. For further detail, see Practice Note: Contract interpretation—admissibility of pre-contractual negotiations and statements. Potential rights and remedies arising from pre-contractual statements made before a contract is signed During pre-contract discussions (for example as part of a sales process), parties frequently make statements to each other. Disputes can later arise about whether, and which, of those statements were intended to be incorporated into the contract or might otherwise support alternative remedies. Depending on the facts, a pre-contract statement may take legal effect (and lead to remedies) as follows: Contractual terms: In some circumstances the statement may: be...
This Practice Note It sets out guidance on applying the Protocol. It covers: when the Protocol operates its objectives and scope typical outcomes of non-compliance how it relates to limitation The Protocol replaced the Pre- Action Protocol for Defamation Claims. For how it differs from that earlier regime, see News Analysis: Pre- Action Protocol for Media and Communications Claims. In addition to defamation, the Protocol extends to a range of other media and communications claims which, before 2019, were not governed by a dedicated pre-action protocol. It formed part of broader reforms to media and communications procedure commencing on 1 October 2019, which also introduced a new CPR 53 and a new practice direction. For more on these changes, see News Analysis: New rules for media and communications claims from 1 October 2019......
This Practice Note explains the circumstances and methods by which parties may seek to limit or exclude liability for misrepresentation, by invoking section 3 of the Misrepresentation Act 1967 ( MA 1967) together with the section 11 reasonableness test under the Unfair Contract Terms Act 1977 ( UCTA 1977). Note: from 1 October 2015, UCTA 1977 applies only to business-to-business contracts; for consumer contracts, see sections 61–76 of the Consumer Rights Act 2015 ( CRA 2015). For guidance on rescission and damages arising from misrepresentation, see: Misrepresentation—damages as a remedy Misrepresentation—rescission as a remedy For related matters, including: Entire agreement clauses and their role in limiting or excluding liability for misrepresentation—see Practice Note: Contract interpretation—entire agreement clauses Non-reliance clauses used to exclude or limit liability for misrepresentation and the notion of ‘contractual estoppel’—see Practice Note: Contractual...
ARCHIVED: This archived Practice Note explores the use of mediation‑arbitration (med‑arb) to resolve commercial disputes. It is not maintained and is provided for background purposes only. For general information on alternative dispute resolution ( ADR), see ADR and dispute resolution clauses—overview. For guidance on mediation, see Mediation—overview. Med‑arb is suitable for a wide array of commercial disputes. It is appropriate, for example, for international or cross‑border matters in the construction, energy and infrastructure sectors. What is med-arb? Med‑arb is a hybrid, two‑stage ADR mechanism. Typically, the parties authorise the mediator to convert automatically into an arbitrator and to issue a legally binding arbitral award if the mediation does not achieve a settlement of the dispute. The arbitration stage is legally binding, and the arbitrator’s award is enforceable like one made in standard arbitration proceedings, a feature that is generally...
ARCHIVED: This Practice Note has been archived and is no longer maintained. It outlines the core doctrines of marine insurance as set out in the Marine Insurance Act 1906 ( MIA 1906). It considers indemnity principles within marine cover, the notion of a marine adventure, combined land and sea exposures and perils of the sea. It further reviews insurable interests, the main risks insured, marine policy forms, the role of marine insurance brokers and the insurer’s rights of subrogation under a marine policy among other related matters. For fuller guidance on types of marine insurance, see: Marine insurance—overview Practice Notes: Marine insurance—essentials Marine cargo insurance Hull and machinery insurance Protection and indemnity insurance Marine war risks What is marine insurance? Marine insurance is defined in MIA 1906 as a contract by which the insurer agrees, in the manner and to the...
This Practice Note examines how the Limitation Act 1980 ( LA 1980) operates, outlining its role and the circumstances and manner of its application. For help calculating limitation periods under LA 1980, including general rules on when time begins to run and when a claim is treated as ‘brought’ for limitation purposes, see Practice Note: Limitation—when will it end? For a summary of the principal limitation periods under LA 1980, see Practice Note: Limitation—the principal limitation periods. The function of limitation periods Statutory limitation periods aim to calibrate a balance between interests that compete and at times clash: the interest of the claimant in having the widest possible chance to pursue claims for legal redress, and the interest of the defendant in not being required to answer stale proceedings because: it is unjust for the...
Licensing IP rights—introduction Preparing IP licences often throws up intricate commercial and legal considerations, typically demanding extensive bargaining. This Practice Note highlights the principal, practical matters to weigh up before you draft and while you negotiate an IP licence, seen from both licensor and licensee viewpoints. At its core, an IP licence is the licensor’s consent allowing the licensee to use IP that it would otherwise be barred from exploiting. Owners may exploit and commercialise IP as either a carrot or a stick. Parties might agree terms for a mutually advantageous licence to create new offerings or reach fresh markets. Equally, an owner may take a defensive stance, pressing for settlement licences and recovering settlement payments from those already using its IP without permission. Accordingly, the initial position and broader commercial context will heavily influence both the negotiations and the eventual licence terms......
This Practice Note outlines what know-how is and identifies the various methods by which it can be safeguarded, before offering guidance on matters connected to licensing know-how, including licensing within a broader research and development ( R& D) arrangement. It covers why know-how is licensed, the principal clauses of a know-how licence, IP considerations in R& D agreements and issues around co-ownership of IP rights. What is know-how? ‘ Know-how’ denotes technical or practical knowledge gained through research or experience and typically concerns how something is carried out. This technical or practical insight may be documented in any format—or retained solely in the mind of an inventor or key employee—and may include operating manuals, drawings, blueprints and other technical material. As it is not always recorded in writing, it can be hard to define. However, Article 1 of Assimilated Regulation ( EU) 316/2014, the...
Scots contract law Although they have separate origins, Scots contract law has, in many respects, drawn closer to the English position. English-law notions such as undue influence and anticipatory breach have been taken into Scots contract law, and some leading authorities coincide across both systems. Nonetheless, there remain important differences that it is sensible to keep in view. The aim of this Practice Note is to point out some of the key differences between Scots and English contract law in these areas......
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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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