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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 at the date of the decision of 5 April 2017; it is no longer maintained. See further: timeline, commentary and related cases Case facts Outline European Commission merger inquiry into the proposed purchase of Syngenta AG ( Syngenta) by China National Chemical Corporation ( Chem China). The deal presents horizontal overlaps in markets for supplying crop-protection products and for active ingredients, the key chemical inputs used to manufacture crop-protection products. Latest developments On 5 April 2017, the Commission approved the merger subject to commitments. Under these commitments, the parties will divest substantial parts of Chem China’s European pesticides and plant growth regulator operations. Parties Syngenta, a Swiss-based agrochemical and seeds business, produces and sells crop-protection products, seeds, and lawn and garden goods. It operates worldwide across research, development, manufacturing and marketing of a wide variety of...
The EU requires parties to transactions to notify when specified thresholds are crossed, enabling competition authorities to examine deals that could significantly harm competition before completion. Gun jumping concerns unlawful pre-merger co-ordination or integration between the parties to a transaction. It commonly refers to two situations: transactions completed without any notification despite thresholds being met (‘failure to notify’ cases), and substantive gun jumping, i.e. integration steps taken before clearance—often while the authorities’ review is ongoing For a practical checklist of do’s and don’ts on gun jumping, see the Gun-jumping ‘ Do’s and don’ts’—checklist. Failure to notify Failure to notify cases are those where parties entirely omit informing the competition authorities of a transaction that triggers merger thresholds, thereby breaching the obligation to notify a transaction prior to its implementation under Article 4(1) of the EU Merger Regulation ( EUMR). Where the EUMR is not...
ARCHIVED: Revised Horizontal Guidelines were published in the Official Journal on 21 July 2023. This Practice Note was prepared with the earlier Horizontal Guidelines in mind and is not maintained. For the most up to date material, please refer to the relevant section in Practice Note: Analysing horizontal co-operation agreements under EU competition law. Joint purchasing agreements are arrangements through which two or more undertakings—often a considerable number—agree to buy together all or part of their product needs. These agreements can produce meaningful benefits for consumers and markets. They may secure cost efficiencies, such as lower purchase prices and reduced transaction, transport and storage costs, stemming from the parties’ greater purchasing power and economies of scale, with savings then passed on to customers. They can also provide qualitative advantages, for instance by encouraging suppliers to innovate and to introduce new or improved products into the...
CASE HUB NOTE—appeal lodged before the General Court in Case T- 172/21 ARCHIVED This archived case hub records the position at the date of the 20 January 2021 decision and is not maintained. See further: timeline, commentary and related cases. Case facts Outline European Commission Article 101 TFEU inquiry into bilateral arrangements between Valve Corporation (owner of a game distribution platform) and five video game publishers— Bandai Namco, Capcom, Focus Home, Koch Media and Zeni Max—aimed at restricting parallel trade within EU Member States by stopping customers buying cheaper games sold outside a customer’s location or country of residence (geo‑blocking). Latest development On 20 January 2021, the Commission adopted an infringement decision. Fines totalling €7.8m were imposed as follows: Valve — €1.62m Bandai Namco — €340,000 (including a 10% reduction for co‑operation) Capcom — €396,000 (including a 15% reduction for...
CASE HUB (date of judgments—15/07/2015) ARCHIVED This archived case hub sets out the position as at the judgment of 15 July 2015 and is no longer updated. For more, see the timeline and related/similar cases. Note— AGC has lodged an appeal before the Court of Justice in Case C-517/15. Case facts Outline Applications were brought before the General Court to annul the Commission decisions of 6 August 2012, by which the Hearing Office declined the applicants’ bids for confidential status over specified material—namely information supplied by Degussa within its leniency application—earmarked for inclusion in the published version of the ' Car glass cartel' decision. On 15 July 2015, the General Court rejected AGC’s action in full. Pilkington’s action was largely rejected; the Commission decision was annulled only to the extent the Hearing Officer had expressly refused...
CASE HUB (appeal lodged by Trioplast at the Court of Justice in Case C- 364/16) ARCHIVED –this archived case hub reflects the position at the date of the judgment of 12 May 2016; it is no longer maintained. See further: timeline and related/relevant cases Case facts The matter stems from the Commission’s decision of 30 November 2005 imposing a fine linked to a subsidiary of Trioplast Industrier for involvement in the ‘ Industrial bag’ cartel. Subsequent Commission measures followed a General Court ruling that reduced the amount for which Trioplast Industrier bore joint and several liability. Outline An action was brought before the General Court to set aside the Commission’s letter seeking late-payment interest from Trioplast Industrier on the fine mentioned above, issued in the wake of those subsequent measures. On 12 May 2016, the General Court rejected the claim in full. The dispute...
Cases T‑517/09 Alstom v Commission and T‑521/09 Alstom Grid (formerly Areva T& D) v Commission ( Power transformers cartel) [ Archived] CASE HUB ARCHIVED – this archive captures the position as at the judgment of 27 November 2014 and is no longer updated. See further: timeline, commentary and related/relevant cases. Case facts Outline Actions before the General Court sought to annul, or alternatively reduce, the fines arising from the Commission’s decision of 7 February 2009, which found infringements of Article 101 TFEU and Article 53 of the EEA Agreement. The decision imposed a €16.5m penalty on Alstom and Areva T& D for the alleged involvement of Areva T& D (then Alstom T& D) in a market‑sharing arrangement concerning the supply of power transformers between 1999 and 2003 (“ Power transformers cartel”). The Alstom appeal addressed, among other issues, whether a parent company could be held...
CASE HUB NOTE—appeal lodged before the Court of Justice in Case C- 890/19 P ARCHIVED —this archived case hub reflects the position at the date of the judgment of 24 September 2019; it is no longer maintained. See further: timeline and relevant/related cases. Case facts Outline Proceedings seeking to annul the Commission decision of 15 October 2014, which concluded, among other matters, that a Slovak chemical undertaking ( NCHZ) benefited from unlawful State aid during its bankruptcy procedure ( Case SA.33797). Latest developments On 24 September 2019, the General Court delivered its judgment, rejecting the action and confirming the Commission’s 2014 decision. The Court dismissed Fortischem’s claim that its predecessor, NCHZ, did not obtain any additional advantage from being treated as a strategic company compared with the application of ordinary insolvency rules. It also endorsed the Commission’s finding that Fortischem is the economic successor to NCHZ and is...
CASE HUB NOTE—appeals lodged before the Court of Justice in Cases C- 470/23, C- 469/20 and C- 468/20, C- 467/20, C- 466/20, C- 465/20 and C- 464/20, C- 484/20 and C- 485/20 ARCHIVED —this archived case hub reflects the position at the date of the judgments 17 May 2023; it is no longer maintained. See further, Case facts Outline Proceedings were brought before the General Court seeking to annul the Commission’s decision of 26 February 2019, which granted unconditional clearance for RWE’s acquisition of E. On’s renewable and nuclear electricity generation activities ( M.8872). Latest developments On 17 May 2023, the General Court delivered 11 judgments. Six actions were rejected in their entirety as unfounded; among other findings, the Court determined that the notion of ‘single concentration’ is not applicable in the context of asset swap arrangements. In the remaining five actions, the Court declared the cases...
CASE HUB ARCHIVED —this archived case hub reflects the position at the date of the judgment of 28 March 2017; it is no longer maintained. See further: timeline and related/relevant cases Case facts ARCHIVE—28/03/2017 Outline An appeal was brought before the General Court aiming to set aside the Commission’s 17 February 2015 decision, which refused Deutsche Telekom access to documents concerning a probe into alleged dominance abuses within Internet connectivity services ( COMP/ AT.40089— Deutsche Telekom). The operator submitted its access application shortly after the Commission decided in October 2014 to close its Article 102 TFEU investigation, seeking to grasp the reasoning and purpose underpinning a review that the Commission ultimately discontinued. In doing so, Deutsche Telekom asked to inspect internal Commission material and the contributions and correspondence supplied by third parties. The General Court, by judgment of 28 March 2017, dismissed the action in its...
CASE HUB ARCHIVED This archived hub sets out the position as at the judgment dated 11 December 2013 and is no longer maintained today. See also: the timeline, commentary and related cases for reference. Case facts Outline Appeal brought by Cisco Systems and Messagenet against the European Commission’s clearance decision of 7 October 2011 approving, without conditions, Microsoft Corporation’s acquisition of Skype. Parties Applicants: Cisco Systems Inc Messagenet Sp A Defendant: European Commission Background On 7 October 2011, the Commission authorised, without conditions, Microsoft’s purchase of Skype. Microsoft is primarily engaged in the design, development and supply of computer software, operating systems and related services, while Skype delivers communications services over the internet, including instant messaging, voice and video communication. The Commission found that: the transaction did not give rise to competition concerns, as the parties’ overlap was chiefly in video communications markets where numerous players are already active; and ...
CASE HUB Archived —this case reflects the position of the judgement of 13 December 2018; it is no longer maintained. NOTE— Appeals were lodged with the Court of Justice in Cases C-152/19 P and C-165/19 P. See further: timeline and commentary. Case facts Outline Two linked, yet distinct, appeals were brought before the General Court against the European Commission’s decision of 15/10/2014 to levy €69.9m in fines on Slovak Telekom and its parent, Deutsche Telekom, for abusing a dominant position in Slovakia’s broadband sector. The impugned conduct consisted of a refusal to supply and a margin squeeze ( Case AT.39253). Outcome On 13 December 2018, the General Court delivered its judgements, by which it partially set aside the Commission’s decision as regards a finding of an infringement of Article 102 TFEU. The Court largely confirmed the Commission’s view that Slovak Telekom and its parent company had breached Article 102 TFEU....
CASE HUB NOTE—appeal lodged before the Court of Justice in Case C- 70/23 ARCHIVED — this case hub captures the status as at the 23 November 2022 judgment and is no longer being updated. See further, timeline. Case facts Outline An appeal was brought before the General Court seeking to set aside the calculation method for the penalty arising from the Commission’s decision in the pre-stressing steel cartel ( COMP/38.344), as later amended by Commission Decision C(2010) 6676 final of 30 September 2010 and Commission Decision C(2011) 2269 final of 4 April 2011. Latest development On 23 November 2022, the General Court delivered its judgment dismissing the appeal. It found, among other matters, that the Commission was entitled to regard the fine fixed by the General Court as not a new sanction and thus payable from 4 January 2011. The suspension of the duty to provide a bank...
CASE HUB ARCHIVED – this archived case hub reflects the position as at the judgment of 16 October 2013; it is no longer maintained. See further: timeline, commentary and related/relevant cases Case facts Outline Appeal before the General Court seeking the annulment of the Commission decision of 2 July 2010 which rejected a complaint by Vivendi alleging an infringement of Article 102 TFEU by France Télécom on the French broadband and telephone subscription markets. The allegations concerned a pattern of structural discrimination in the pricing of wholesale offers (favoured towards France Télécom’s retail arm) and the maintenance of an excessively high tariff for recurrent access to the local loop. The Commission dismissed the complaint on the basis that there was insufficient EU interest to pursue an investigation into the alleged abuses. On 16 October 2013, the General Court dismissed in full Vivendi’s action for...
CASE HUB ( NOTE— Philips and Infineon filed appeals before the Court of Justice in Cases C- 98/17 and C- 99/17; see Case C- 99/17 P Infineon Technologies v Commission) ARCHIVED —this case hub records the position as at the judgment dated 15 December 2016; it is no longer maintained. See further: timeline and relevant/related cases Case facts Outline Applications were brought before the General Court seeking annulment and/or reductions in the level of fines imposed under the Commission’s decision of 3 September 2014, which found an infringement of Article 101 TFEU and Article 53 EEA Agreement and imposed individual penalties of €82.78m and €20.15m on Infineon and Philips (respectively) for their alleged participation in a cartel relating to the supply of smart card chips (‘ Smart card chips cartel’). Latest development On 15 December 2016, the General Court dismissed the actions in full. Although it accepted that there were...
CASE HUB ARCHIVED – this archived case hub sets out the position as at the judgment dated 14 May 2014; it is no longer being updated. Case facts Outline An appeal was brought before the General Court seeking annulment and/or a reduction of the penalty arising from the Commission’s decision of 11 November 2009. That decision found breaches of Article 101 TFEU and Article 53 EEA and levied a €10.8m fine in connection with Reagens Sp A’s alleged involvement in EEA‑wide cartels in the market for tin and ESBO/esters heat stabilisers (the ‘ Heat stabilisers cartel’). The case raises, amongst other points, questions about whether the Commission has adduced evidence capable of proving, to the requisite legal standard, circumstances constituting an infringement. Parties Applicants: Reagens Sp A ( Reagens) Defendant: European Commission Reagens is an Italian enterprise and the ultimate parent of an...
CASE HUB ARCHIVED This archived case hub sets out the position as at the judgment of 30 May 2013 and is no longer being maintained. See also: timeline, commentary and related/relevant cases. Case facts Outline An appeal brought before the General Court sought the annulment of the Commission decision of 1 December 2010 that refused a complaint filed by Omnis Group, alleging breaches of Articles 101 TFEU, 102 TFEU and 106 TFEU by Microsoft Corp within the market for Enterprise Application Software (commonly described as ‘ Enterprise Application Software/ Enterprise Resource Planning’ systems). The Commission rejected the complaint on the basis that there was insufficient EU interest to pursue an investigation into the alleged infringements. On 30 May 2013, the General Court dismissed Omnis’ action for annulment in its entirety. The case concerns the Commission’s procedure and discretion in handling competition law...
CASE HUB ARCHIVED —this archived case hub captures the position as at the judgment dated 14 September 2017; it is no longer updated. See also the timeline and related/relevant cases. Case facts Outline Appeal before the General Court seeking annulment of the Commission decision of 9 October 2015 that rejected a complaint lodged by Contact Software, alleging that Dassault Systèmes and PTC abused a dominant position in the market for computer-aided design ( CAD) software by refusing to supply interoperability information for product data management ( PDM) software. The General Court found that the Commission committed no error in deciding the complaint should be dismissed, particularly regarding market definition and the alleged abuse, and furthermore provided adequate reasoning for its decision. Latest developments On 14 September 2017, the General Court delivered its judgment, dismissing in full an action for annulment of the European...
CASE HUB ( NOTE—appeal lodged by Agria Polska at the Court of Justice in Case C-373/17 P) ARCHIVED — this archived case hub captures the position as at the judgment of 16 May 2017; it is no longer being updated. See also: timeline and relevant/related cases. Case facts Outline Application to the General Court seeking to set aside the Commission decision of 19 June 2015 refusing a complaint lodged by Agria Polska. That complaint alleged that several competitors — major agrochemical companies, assisted by industry associations and a law firm — had breached Articles 101 and 102 TFEU by pursuing a ‘vexatious’ administrative and criminal-law campaign intended to exclude Agria Polska and its subsidiaries from the ‘plant protection products’ market across a number of EU Member States, particularly Poland. The Commission declined to launch an in‑depth investigation on the basis of enforcement priorities and, within that...
CASE HUB (appeal lodged at the Court of Justice by Evonik in Case C– 162/15) ARCHIVED – this archived case hub records the position as at the judgment of 28 January 2015; it is no longer maintained. See further: timeline, commentary and related/relevant cases Case facts Actions before the General Court sought to set aside the Commission decision of 24 May 2012, which declined the applicants’ requests for confidential treatment of material intended for inclusion in the published version of the ‘ Hydrogen peroxide and perborate cartel’ decision. On 28 January 2015, the General Court rejected the annulment claims brought by Akzo and Degussa. The dispute concerns the Commission’s process and latitude in handling confidentiality claims, notably for information submitted within a leniency application—requiring a balance between protecting leniency applicants and safeguarding the effectiveness of the leniency regime, and the interests of potential damages...
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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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