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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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Note— To check whether notification thresholds in Jersey and worldwide are satisfied, please see: Where to Notify. 1. Have there been any recent developments regarding the merger control regime in Jersey and are any updates or developments expected in the coming year? Are there any other ‘hot’ merger control issues in Jersey? There have been no fresh amendments to the principal statute, the Competition ( Jersey) Law 2005 (the Law), nor to the Competition ( Mergers and Acquisitions) ( Jersey) Order 2010 (the Mergers Order). On 21 February 2023, the Government of Jersey launched a public consultation, which closed on 21 April 2023, to obtain views on a series of proposals to revise and modernise Jersey’s competition framework. That exercise featured wide engagement with local stakeholders, including figures from the legal and financial professions, the...
CASE HUB NOTE—appeal lodged before the Court of Justice in Case C- 933/19 P ARCHIVED —this archived case hub reflects the position at the date of the judgment of 24 October 2019; it is no longer maintained. See further, timeline. Case facts Outline Case T- 778/17 Autostrada Wielkopolska v Commission—proceedings seeking to set aside the European Commission’s decision that support granted by Poland to AWSA, the A2 motorway operator, amounted to unlawful aid that must be recovered ( Case SA.35356). Latest developments On 24 October 2019, the General Court delivered its judgment, dismissing the action. Parties Applicant: Autostrada Wielkopolska S. A. ( AWSA), a Polish undertaking that operated the A2 motorway in Poland Defendant: European Commission Background The aid granted In August 2012, Poland notified the Commission that AWSA had been overcompensated for reduced revenues caused by changes to national rules on toll motorways between 1 September 2005 and 30 June 2011. The...
CASE HUB (date of judgment—18/01/2017) For more, see: timeline, commentary and related/similar cases Case facts ARCHIVED — this archived case hub captures the position as at the 18 January 2017 decision date; it is no longer being maintained. Outline An appeal was lodged against the General Court’s ruling that only partially annulled the Commission decision of 5 December 2012 identifying infringements of Article 101 TFEU and Article 53 of the EEA Agreement and, therefore, holding that Toshiba remains jointly and severally responsible for the conduct of a former joint venture arising from that venture’s direct participation in a cartel covering the supply of cathode ray tubes (the ‘ TV tubes cartel’). On 18 January 2017, the Court of Justice dismissed Toshiba’s challenge in full, thereby confirming the €82.8m fine imposed jointly and severally on Toshiba (together with Panasonic and Toshiba’s former joint venture, Matsushita Toshiba Picture Display Co Ltd (...
CASE HUB ARCHIVED This archived case hub reflects the position at the date of the decision of 8 May 2014 and is no longer maintained. See further, timeline and related cases. Case facts Outline European Commission merger investigation into the proposed PVC joint venture between INEOS and Solvay ( Case M.6905). After a phase II investigation, the Commission cleared the deal on 08/05/2014 subject to commitments. The transaction creates a joint venture bringing together the two leading suppliers of S- PVC in the EEA and in North-west Europe, and the two leading bleach suppliers in the Benelux states. Latest developments On 8 May 2014, the Commission cleared the transaction subject to commitments. The accepted commitments comprise the divestment of: INEOS’s S- PVC plants in Wilhelmshaven, Mazingarbe and Beek Geleen; and the upstream chlorine and ethylenedichloride ( EDC) production assets in Tessenderlo and Runcorn—the joint venture and the purchaser of the Runcorn assets will...
CASE HUB ARCHIVED This archived case hub sets out the position as at the decision of 18 January 2019; it is no longer maintained. See further: timeline. Case facts The matter concerns BASF’s planned purchase of Solvay’s nylon operations, with overlaps across the nylon sector, notably in markets for producing nylon compounds and nylon fibres. Outline European Commission merger review of the proposed acquisition of Solvay’s nylon business by BASF ( Case M.8674). Latest developments On 18 January 2019, the Commission cleared the deal, subject to remedies. The parties committed to divest several Solvay sites, to form a manufacturing joint venture with the buyer of those assets, and to conclude long-term supply arrangements to cover the divested unit’s needs. Parties BASF, headquartered in Germany, is a large, diversified chemical group active in chemicals, performance products, functional materials and solutions, agricultural solutions and oil & gas. It operates along the polyamide value chain,...
CASE HUB ARCHIVED –this archived case hub reflects the position at the date of the withdrawal of the notification on 21 December 2018; it is no longer maintained. See further: timeline. Case facts Outline of the European Commission’s merger probe into Aperam’s planned purchase of VDM ( Case M.8907). The deal raised horizontal overlap issues in the manufacture of nickel alloy products. Latest developments On 21 December 2018, Aperam announced it had ended the SPA with Lindsay Goldberg to acquire VDM and, in light of the Commission’s objections, dropped the transaction. The notification to the Commission was withdrawn on the same date. Parties Aperam ( Luxembourg) produces stainless, electrical and speciality steel, serving customers in over 40 countries and operating across a broad range of industries......
The 'essential facilities' doctrine holds that when a dominant undertaking withholds access to an essential facility it controls, this can amount to an abuse of dominance where that denial materially restricts competition. Historically, essential facilities cover infrastructure, for example an airport or an energy transmission pipeline, regarded as indispensable for a particular rival to compete effectively in a downstream, closely related, or neighbouring market. Recent jurisprudence has extended the doctrine within the sphere of digital platforms, acknowledging that curbs on entry to certain platform ecosystems may, in appropriate circumstances, prompt concerns under Article 102 TFEU even if the facility does not mirror traditional physical infrastructure. Distinct issues also arise where licensing or access to intellectual property rights ( IPRs) or propriety information is refused, which this Practice Note does not address. Essential facilities doctrine in a policy...
CASE HUB ARCHIVED – this archived case hub reflects the position at the date of the judgment of 14 July 2016; it is no longer maintained. See further, timeline, commentary and relevant/related cases. Case facts Outline Referral back to the General Court followed the Court of Justice’s ruling in Case C‑434/13 P Commission v Parker Hannifin Manufacturing (formerly Parker ITR) and Parker‑ Hannifin, which was an appeal against the General Court’s judgment partially annulling the Commission decision in Case COMP/39.406 ( Marine hoses cartel). On 14 July 2016, the General Court delivered its judgment, in part allowing the appeal and adjusting the fines imposed on Parker Hannifin Manufacturing (formerly Parker ITR) and Parker‑ Hannifin, accordingly. However, the remainder of the action was ultimately dismissed in its entirety and, in particular, the Court expressly reaffirmed that the Commission had—despite the General Court’s prior...
CASE HUB ARCHIVED – this archived case hub captures the position as at the judgment dated 21 May 2015; it is no longer maintained. See further: timeline, commentary and related/relevant cases Case facts Outline A reference from the German Landgericht Dortmund asked the Court of Justice for a preliminary ruling under Article 267 TFEU, in order to clarify several issues concerning the application of Regulation ( EC) No 44/2001 (the Brussels Regulation) to a competition damages action with multiple defendants where, after the claim was issued, the sole ‘anchor defendant’ reached a settlement. The Brussels Regulation lays down the core rules for fixing jurisdiction when disputes involve parties in different Member States. For competition litigation, it provides both the initial framework and the benchmark used by a court to decide whether it has jurisdiction to hear the...
CASE HUB ARCHIVED This archived case hub reflects the position as at the decision date of 5 September 2014; it is no longer maintained. See further: timeline, commentary and related/similar cases. Case facts Outline Appeal before the General Court against the Commission decision of 13 May 2011 endorsing Wendel Investissement as the purchaser of divested assets, in line with commitments arising from the conditional clearance of 7 January 2004 authorising the merger by which Lagardère obtained sole control of the assets of Vivendi Universal Publishing ( Case COMP/ M.2978— Lagardère/ Natexis/ VUP). The impugned decision followed the General Court’s annulment of the original approval of Wendel as buyer due to procedural irregularities. On 5 September 2014, the General Court dismissed the action. The case chiefly concerned procedural aspects of the divestiture, namely the suitability of the purchaser and, in particular, the need to ensure and evaluate the...
1. What is the applicable legislation? As a preliminary note, under a general principle of Italian law known as the ‘reciprocity principle’, non‑ Italian investors—whether individuals or companies—may invest in Italy only if their state of origin grants Italian investors equivalent rights, or if there is an international treaty with Italy that permits such investment. The reciprocity requirement is not relevant for European investors. For transactions involving non‑ EU investors, however, it is prudent to verify the application of this principle and, if needed, put in place a specific investment structure. In practice, most foreign investors utilise EU platforms or Italian vehicles, with real estate funds commonly used for property investments. With regard to investments in certain strategic sectors of the Italian economy, the governing framework is set out in Decree Law No. 21 of 15 March 2012 on ‘ Special powers on...
CASE HUB ARCHIVED This archived case hub records the position as at the judgment dated 16 June 2015 and is no longer maintained. See further: timeline, commentary and related/similar cases. Case facts The Commission’s decision of 12 October 2011 found a breach of Article 101 TFEU and imposed an €8.92m fine on FSL, jointly and severally with two subsidiaries, for a subsidiary’s alleged involvement in a price‑fixing cartel in southern Europe concerning the supply of bananas (the ‘ Exotic fruits—bananas cartel’). On 16 June 2015, the General Court partially annulled that decision and reduced the fine to €6.69m. Outline The appeal to the General Court sought annulment and a reduction of the penalty. The ruling addresses principles on the burden of proof for establishing the period of an undertaking’s participation in the cartel and, consequently, the Commission’s fine calculations under the 2006 Fining Guidelines, notably the duration...
CASE HUB ARCHIVED —this archived case hub reflects the position at the date of the judgment of 14 April 2021; it is no longer maintained. See further, timeline. Case facts Outline Proceedings before the General Court seeking annulment of the European Commission decision of 23 November 2017 approving two German State aid schemes in favour of charities carrying out social assistance missions ( SA.42268 and SA.42877). Latest developments On 14 April 2021, the General Court delivered its judgment and dismissed the action in full. Parties Applicants: Verband Deutscher Alten- und Behindertenhilfe, Landesverband Niedersachsen / Bremen und Hamburg / Schleswig- Holstein e V ( VDAB), an association operating in Niedersachsen, Freie Hansestadt Bremen, Schleswig- Holstein and Freie und Hansestadt Hamburg, representing 160 companies that run residential facilities offering ambulatory and inpatient care for dependent persons, and assistance for disabled people, children and young people. Care Pool Hannover Gmb H ( Care...
CASE HUB ARCHIVED – This archived case hub sets out the position as at the judgment dated 8 September 2016; it is not being maintained. See also: timeline, commentary and relevant/related cases. Case facts Outline An appeal was lodged before the General Court seeking annulment and/or a reduction of the fines arising from the Commission’s decision of 27 November 2013, which found a breach of Article 101 TFEU and imposed a €27.08m penalty on Heiploeg for its alleged role in a price‑fixing and market‑sharing cartel in the North Sea shrimps sector (“ North Sea Shrimps cartel”). On 8 September 2016, the General Court dismissed the action in its entirety. The case also raises, amongst other matters, issues concerning addressees’ “inability to pay” and the admissibility, in the administrative procedure, of covert (possibly unlawful) recordings that later came into the Commission’s hands during unannounced...
CASE HUB (date of judgments—17/09/2015) See further: timeline, commentary and related/relevant cases ARCHIVED — this archived case hub reflects the position at the date of the decisions of 17 September 2015; it is no longer maintained. Case facts Outline Appeals were filed by Total SA and its subsidiary, Total Marketing Services (successor in title to Total Raffinage Marketing and formerly Total France at the material time of the alleged infringement), contesting the General Court’s judgments. Those rulings, in essence, upheld the Commission’s decision of 15 October 2008, which found an infringement and imposed a €128.163m fine on Total and its subsidiary, on a joint and several basis, for alleged participation in a cartel relating to paraffin and slack waxes from 1992 to 2005 (the ‘candle waxes cartel’), but granted a slight reduction to Total Raffinage owing to irregularities in the calculation of the fine. On 17...
CASE HUB ARCHIVED — this archived case hub sets out the position at the judgment date of 19 December 2013; it is no longer maintained. See further: timeline, commentary and related/relevant cases Case facts Outline Appeals were brought against rulings of the General Court upholding the Commission decision of 24 January 2007, as regards infringement findings against Siemens, Toshiba and Mitsubishi Electric for their alleged participation in a price-fixing cartel for gas insulated switchgear (' Switchgear cartel'). The case also examines (among other things) the method for establishing a 'single and continuous infringement' and the Commission's calculations of fines under the guidelines in that context. Parties Appellants: Mitsubishi Electric Corporation ( Mitsubishi) Toshiba Corporation ( Toshiba) Siemens AG ( Siemens) Other party: European Commission Background The Commission imposed fines totalling €750.71m on 20 European and Japanese companies (comprising 11 group companies) for their...
CASE HUB ARCHIVED – this archived case hub sets out the position as at the judgment handed down on 6 June 2013; it is no longer maintained. See further: timeline, commentary and related/relevant cases Case facts Outline National reference from the Austrian Cartel Court on whether Austrian rules, which in practice bar third‑party access to leniency materials lodged with the national court, are consistent with EU law. Parties Verband Druck & Medientechnik, a trade body representing businesses in the Austrian printing industry Oberlandesgericht Wien ( Austrian Cartel Court) Bundeswettbewerbsbehörde ( BWB) — the Austrian Federal Competition Authority Donau Chemie AG and six others Market(s) Austria’s wholesale supply market for printing chemicals. Background to reference Following a leniency submission in April 2009, the BWB petitioned the Cartel Court to impose penalties on several companies active in Austria’s printing chemicals market for participating in a cartel. On 26 March 2010 the Cartel Court allowed the...
ARCHIVED This archived case hub reflects the position as at the judgment dated 18 August 2021; it is no longer maintained. See the timeline, commentary and related cases... Case facts Outline CAT judgment on the remitted collective proceedings order sought by Mr Walter Merricks, who applied to act as the class representative to bring opt-out collective proceedings under section 47B of the Competition Act 1998... Latest development On 18 August 2021, the CAT handed down its judgment, deciding that Mr Merricks should be authorised as the class representative under section 47B(8) of the Competition Act 1998, provided his litigation funder gives a suitable undertaking regarding liability for adverse costs... Parties Appellants: Mastercard Incorporated, Mastercard International Incorporated and Mastercard Europe S. P. R. L (together, Mastercard). Mastercard is the international payment organisation responsible for managing and co-ordinating the Mastercard and Maestro card payment systems, which includes, among other things, setting system rules and...
CASE HUB ARCHIVED This archived case hub sets out the position held as at the decision dated 7 July 2016; it is now no longer updated. See further: timeline case facts outline European Commission Article 101 TFEU investigation into price announcements by container shipping companies ( Case AT.39850). Latest development: on 7 July 2016, the Commission accepted binding commitments from the fourteen container liner shipping companies and closed its investigation......
The question of what is an ‘undertaking’ determines the scope of competition law. Only undertakings fall under the rules on anti-competitive agreements and the abuse of a dominant position. This preliminary issue must be resolved before any enquiry into conduct (and its effect on the market) begins. In many cases the answer is straightforward—a business trading commercially will be within reach. Matters become more debated when the provision of public services is in play. The term 'undertaking' is not defined in the EU Treaties or regulations. The case law instead examines the activity at issue, drawing a crucial line between private operators ‘engaged in economic activity’ and those acting to pursue a social or public aim. That approach can include non-profit-making activity and the work undertaken by trade associations and charities. Public bodies may equally be undertakings where they engage in economic activity rather than...
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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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