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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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CASE HUB ARCHIVED This archived case hub reflects the position as at the date of the judgment on 18 May 2022; it is no longer maintained. See further: timeline and related/relevant cases. Case facts Outline Appeal before the General Court seeking annulment of the Commission’s decision of 27 June 2019, which imposed a €28m fine on Canon Inc. for implementing elements of its acquisition of Toshiba Medical Systems Corporation, a wholly owned subsidiary of Toshiba Corporation, prior to clearance via a two-step ‘warehousing’ structure. Latest development On 18 May 2022, the General Court dismissed the appeal in full. It held, among other findings, that the Commission: (i) correctly treated the interim step as partial implementation of the concentration, infringing Articles 4(1) and 7(1) EUMR; (ii) made no error in imposing fines or in their calculation; and (iii) committed no procedural irregularities affecting Canon’s rights of...
CASE HUB ARCHIVED- This archived case hub reflects the position at the date of the decision of 26 October 2022; it is no longer maintained. See further, timeline. Case facts Outline of a UK merger investigation into the anticipated acquisition by London Stock Exchange Group PLC of Quantile Group Limited. The deal featured vertical overlaps relating to the provision of post‑trade services. Latest developments On 26 October 2022, the CMA published its final report, granting unconditional clearance to the transaction. Parties London Stock Exchange Group PLC ( LSEG): The UK’s stock exchange. It operates markets that enable the raising of capital and the trading of corporate securities, provides access to a trading venue, and supplies real‑time pricing and reference information globally. Coverage spans equities, derivatives and fixed‑interest securities. Quantile Group Limited ( Quantile): Founded in 2015, it offers financial services. It has built a platform using an...
CASE HUB ARCHIVED-this archived case hub reflects the position at the date of the judgment of 12 January 2023; it is no longer maintained. See further, timeline and relevant/related cases. Case facts Outline Appeal against the General Court’s judgment in Case T-105/17 rejecting an application to annul the Commission’s decision of 7 December 2016, which established infringements and levied a fine on three banks that did not settle for their involvement in a cartel in the Euro Interest Rate Derivative ( EIRD) market ( Case AT.39914). Outcome On 12 January 2023, the Court of Justice handed down its ruling, partly allowing HSBC’s appeal and thus setting aside the General Court’s judgment to that extent. However, considering it could determine the dispute without sending it back, the Court of Justice issued a final ruling and dismissed HSBC’s...
1. Have there been any recent developments regarding the regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Bahrain? Bahrain’s merger control framework was updated by Ministerial Decision No. 72 of 2019 on the regulation of economic concentration ( Decision No. 72 of 2019), which set out explicit dominance thresholds and introduced compulsory pre-approval for qualifying deals. This instrument works alongside Law No. 31 of 2018 concerning the Promotion and Protection of Competition ( Law No. 31 of 2018), delivering a clearer, more organised system for supervising economic concentrations. Since that refinement, there have been no current ‘hot’ merger control matters in Bahrain. 2. Under law, is the control test the same as the EU concept of ‘decisive influence’? If not, how does it differ and what is the position in relation to...
CASE HUB ARCHIVED This archived case hub captures the position as at the judgment dated 06/05/2022; it is not being updated. See further, timeline, commentary and related cases. Case facts Outline An appeal was brought against the CAT’s ruling of 27 September 2021, which had dismissed a challenge to the collective proceedings order made by the CAT. That order certified, on an opt-out basis, a damages claim against BT pursued by Mr Justin Le Patourel under section 47B of the Competition Act 1998. Latest developments On 6 May 2022, the Court of Appeal handed down its judgment and unanimously rejected the appeal. It held, amongst other things, that: neither section 47B nor the CAT Rules 2015 establish any policy or legal bias in favour of, or against, opt-in or opt-out; the CAT rightly determined it possessed authority to order an account credit; and the CAT’s course of...
CASE HUB ARCHIVED - this archived case hub captures the position as at the decision of 12 January 2023; it is no longer maintained. See further, timeline. Case facts Outline A national reference from Czechia seeking clarification on the disclosure of evidence under the EU Damages Directive 2014/104/ EU (the Damages Directive). Latest developments On 12 January 2023, the Court of Justice ruled, among other points, that a national court may require the production of certain evidence for damages actions relating to an alleged breach of competition rules, even where those proceedings have been paused because the Commission has begun an investigation into the same conduct. The court must nonetheless verify that the disclosure sought is genuinely necessary and proportionate for the damages claim and that it adheres to the Damages...
1. What is the applicable legislation? Private investment in Angola, whether treated as FDI or otherwise, is governed by Law No. 10/18 of 26 June 2018, as updated by Law No. 10/21 of 22 April 2021, which adopted the Private Investment Law ( PIL). In parallel, Presidential Decree No. 250/18 of 30 October 2018, as amended by Presidential Decree No. 271/21 of 11 June 2021, gives effect to the PIL and sets out the procedures for registering a Private Investment Project. One should also note the Tax Benefits Code, enacted by Law No. 8/22 of 14 April 2022, which defines the tax incentives and benefits available to private investment projects. 2. Which government or other body (or bodies) reviews foreign investments? The Agency for Private Investment and for the Promotion of Exports ( AIPEX), created by Presidential Decree No. 81/18 of 19 March 2018, is the...
1. What is the applicable legislation? Montenegro presently lacks an FDI framework akin to the new regimes taking shape across Europe after the EU FDI Screening Regulation. Rather, it operates a classic, sector-based authorisation model centred on the defence sector, echoing arrangements seen across Europe in the latter half of the twentieth century. Foreign investment in Montenegro generally-and defence-related authorisations in particular-are regulated by the Foreign Investments Act ( Official Gazette of Montenegro, Nos. 18/11, 45/14, and 73/19) ( Foreign Investment Act) together with the Guidance on the Content and Manner of Submitting Information on Foreign Investments ( Official Gazette of Montenegro, No. 19/14). 2. Which government or other body (or bodies) reviews foreign investments? Foreign investments concerning defence are examined and decided by the Ministry of Economic...
Case C- 721/20 DB Station & Service [ Archived] CASE HUB ARCHIVED - this archived case hub captures the position at the date of the decision of 27 October 2022; it is no longer updated. See further, timeline. Case facts Outline Case C- 721/20 DB Station & Service - a reference from Germany asking whether Directive 2001/14 prevents national courts from assessing charges imposed under Article 102 TFEU independently of oversight by the regulatory authority. Latest developments On 27 October 2022, the Court of Justice delivered its judgment, by which it ruled. Parties Applicants: DB Station & Service AG ( DB). DB, a subsidiary of Deutsche Bahn AG (the incumbent railway operator in Germany), runs railway stations in Germany. Respondent: ODEG Ostdeutsche Eisenbahn Gmb H ( ODEG). ODEG is a railway undertaking that relies on DB’s infrastructure for its short-distance passenger rail...
CASE HUB ARCHIVED This case hub is archived and captures the position as at the date the notification was withdrawn, 30 November 2022; it is not being updated. See the timeline for further information. Case facts European Commission merger investigation into the planned acquisition of Pfleiderer Polska by Kronospan ( M.10325). The transaction would create horizontal overlaps across the market for supplying several types of wood-based panels. Latest developments On 30 November 2022, the Commission stated it had taken note of the parties’ choice to abandon the deal. That step followed the phase II findings and Kronospan’s failure to put forward suitable remedies. Parties Kronospan: an Austrian producer and supplier of wood-based panels and other value-added products......
CASE HUB NOTE-appeals lodged before the Court of Justice in Cases C- 378/22 P, C- 375/22 P, C- 370/22 P, C- 369/22 P and C- 367/22 P, C- 382/22 P, C- 381/22 P, C- 380/22 P, C- 379/22 P, C- 378/22 P, Case C- 385/22, C- 386/22 and C- 403/22 ARCHIVED This archived case hub captures the position as at the 30 March 2022 judgment date; it is not updated. See the timeline for more details. Case facts Outline Proceedings before the General Court sought to annul, or materially reduce, the fines set by the Commission in its readopted infringement decision of 17 March 2017. That decision found a breach of Article 101 TFEU and imposed aggregate penalties of €776m on 11 airline groups for taking part in a price‑fixing cartel in the air cargo market (...
CASE HUB ARCHIVED - This archived case hub captures the position at the 2 September 2022 decision; it is not maintained. See the timeline for further detail. Case facts Summary: UK merger probe into Norton Life Lock Inc.’s proposed purchase of Avast plc. The firms both supply consumer cyber safety products. Latest developments On 2 September 2022, the CMA issued its final report, unconditionally clearing the deal following an in-depth phase 2 review. Parties Norton Life Lock Inc. ( Norton Life Lock): A provider of consumer cyber security solutions, offering tools that help people safeguard their devices, online privacy, identity, and home networks. Norton Life Lock serves customers worldwide. Avast plc ( Avast): A cyber security software company that designs and develops cloud-based security infrastructure, delivering desktop security and server protection...
CASE HUB ARCHIVED-this archived case hub reflects the position at the date of the judgment of 24 March 2022; it is no longer maintained. See further, timeline. Case facts Appeals were brought against the General Court’s judgments in Cases T-583/18 and T-597/18, which had rejected actions seeking annulment of the Commission’s decision. That decision found that national rules on local transport in the Land of Lower Saxony did not amount to State aid ( Cases SA.46538 and SA.46697). Latest development On 24 March 2022, the Court of Justice delivered its judgment on each appeal. It concluded that the General Court had not erred in determining that the contested measure involved no direct or indirect transfer of State resources to undertakings. The Court also confirmed there was no error of law in holding that municipal-level transport authorities ( AOTs), in light of the role conferred by Article 7a of the...
CASE HUB ARCHIVED This archived case hub reflects the position as at the judgment date of 1 August 2022; it is no longer maintained. See further, timeline. Case facts Outline A national reference from Germany asked whether the Commission’s infringement decision against several truck manufacturers ( Trucks- AT.39824) should be read as including special-purpose/specialised vehicles, notably refuse collection vehicles, within its findings. Latest developments On 1 August 2022, the Court of Justice delivered its judgment, indicating that the Commission’s infringement decision is to be interpreted as covering specialised trucks, including household refuse collection trucks, within the scope of the products affected by the cartel. Parties Applicant: Landkreis Northeim ( LN) Defendant: Daimler AG ( Daimler) Market Trucks. Background to reference Background The Commission carried out dawn raids in January 2011 following an immunity application submitted by MAN. A statement of objections was issued on 20 November 2014. On 19 July 2016, the...
ARCHIVED This archived case hub captures the position as at the judgment dated 18 February 2022 and is no longer maintained. See further: timeline, commentary and related cases. Case facts Outline of the CAT’s judgment concerning an application for a collective proceedings order by Mr Mark Mc Laren, who sought authorisation to act as class representative to bring opt-out collective proceedings under section 47( B) of the Competition Act 1998. Latest development On 18 February 2022, the CAT handed down its judgment, holding, amongst other matters, that: (i) it is just and reasonable for the Applicant to act as class representative; and (ii) the claims qualify to be brought as collective proceedings. The Tribunal found there is an identifiable class and that the claims present common issues, particularly on passing-on, rendering them suitable for determination in collective proceedings. Consequently, the CAT granted the CPO...
CASE HUB ARCHIVED -this archived case hub reflects the position at the date of the judgment of 9 February 2022; it is no longer maintained. See further, timeline and commentary Case facts Outline An action for annulment was brought before the General Court challenging the European Commission’s decision of 12 August 2019, which had refused a complaint filed by a Polish shipping company against a State‑owned operator for abusing a dominant position in Poland’s rail freight transport market ( AT.40459). Latest developments On 2 February 2022, the General Court delivered its judgment and upheld the appeal. Among other findings, the Court held that [x]. Parties Applicants: Sped- Pro S. A. (the ‘ Applicant’) Defendant: European Commission (the ‘ Commission’) Background In conducting activities in the forwarding services sector, the Applicant sourced rail freight transport services from PKP Cargo S. A., a company controlled by the Polish...
CASE HUB See further details, timeline and relevant/related cases. Case facts Outline Proceedings before the General Court contesting the Commission’s decision refusing a request to pay a cartel fine following annulment of the Commission’s decision in the heat stabilisers cartel ( Case AT.38589. Latest developments On 9 February 2022, the General Court issued its judgment, dismissing the appeal in its entirety. In particular, the Court held (amongst other things) that the Commission was entitled to refuse repayment because the legal basis for the fines remained the original 2009 cartel decision rather than the 2016 re‑adopted amending decision. The fines imposed on GEA in the 2009 decision were neither repealed nor replaced by the 2016 decision, which was simply an amending act. The amendments introduced in 2016 did not concern the amount of the fine payable by GEA, an amount definitively fixed by the Commission in 2009. The 2016...
1. What is the applicable legislation? Oversight of foreign investment on national security grounds is laid down in the National Security Act of 1 June 2018 No. 24 (the Act), notably Chapter 10, together with the Regulation of 20 December 2018 concerning the protective security work of undertakings ( Regulation 2010). There are also indirect means of control, particularly a duty on a company that is party to contracts requiring facility security clearance to notify the appropriate authority of any changes to its board make-up or ownership. In addition, the King in Council, i.e. the government in plenary session, may decide to stop activities that pose a threat to national security, or other planned or ongoing activities that may present a ‘not insignificant risk’ to national security interests. 2. Which government or other body (or bodies) reviews foreign...
CASE HUB NOTE-appeal lodged before the Court of Justice in Case C- 251/22 ARCHIVED This archived case hub captures the position as at the judgment of 2 February 2022 and is no longer being updated. See also the timeline and commentary. Case facts Outline Appeal before the General Court against the European Commission decision imposing a fine on Scania for an alleged cartel in the market for medium duty trucks ( AT.39824). Latest development On 2 February 2022, the General Court handed down its judgment and rejected the appeal in full. It found, among other things, that: (i) the Commission did not infringe the presumption of innocence by using a ‘hybrid’ procedure; (ii) there was no breach of Scania’s presumption of innocence or its rights of defence; and (iii) to the requisite legal standard, the Commission proved that the information exchanges at issue formed part of a single overall plan with the...
CASE HUB ARCHIVED -this archived case hub reflects the position at the date of the judgment of 2 February 2022; it is no longer maintained. See further, timeline and relevant/related cases Case facts Outline Proceedings for annulment were brought before the General Court challenging the European Commission’s decision of 24 May 2018 to accept commitments offered by Gazprom to resolve competition concerns affecting national markets for the upstream wholesale supply of gas in central and eastern Europe ( AT.39816). Latest developments On 2 February 2022, the General Court delivered its judgment, dismissing the appeal in its entirety. Parties Applicants: Polskie Górnictwo Naftowe i Gazownictwo S. A (the ‘ Applicant’) Defendant: European Commission (the ‘ Commission’) Background Commission’s investigation Between 2011 and 2015, the Commission undertook a series of measures to examine how gas markets operated in central and eastern Europe. On 4 September 2012, it opened an inquiry into Gazprom PJSC and...
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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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