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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 judgment of 30 January 2020; it is no longer maintained. See also the timeline, commentary, and related or relevant cases. Case facts Outline Case C‑307/18, Generics ( UK) Ltd and Others v Competition and Markets Authority — a UK reference on the application of Articles 101 and 102 TFEU to pay‑for‑delay patent settlement agreements. Latest developments On 30 January 2020, the Court of Justice delivered its ruling. Echoing Advocate General Kokott’s opinion, the Court confirmed, among other matters, that these agreements may amount to a restriction of competition by object or effect and/or an abuse of a dominant position. Parties Applicants: Generics ( UK) Ltd ( GUK) Glaxo Smith Kline plc ( GSK) Xellia Pharmaceuticals Ap S ( Xellia) Alpharma LLL (formerly Zoetis Products LLC) ( Alpharma) Merck KGa A (...
CASE HUB ARCHIVED — this archived case hub sets out the position as at the judgment dated 25 June 2014; it is no longer updated. See also: timeline, commentary and related/relevant cases. Case facts Outline An appeal was lodged by Nexans and Nexans France against the General Court’s ruling that partially upheld the Commission decision of 28 January 2009 obliging Nexans SA, and all entities it directly or indirectly controlled (including Nexans France), to submit to an inspection under Article 20(4) 1/2003, in support of the Commission’s investigation into a suspected cartel in the high-voltage electrical cables sector (‘power cables cartel’). On 25 June 2014, the Court of Justice dismissed the appeal in full. The case concerns the extent of the Commission’s investigatory powers when conducting unannounced inspections, as well as the rights of undertakings that are the subject of such...
CASE HUB ARCHIVED – this archived case hub sets out the position as at the decision date of 19 April 2018; it is no longer updated. See further: timeline, commentary and related/relevant cases Case facts Outline A request for a preliminary ruling under Article 267 TFEU was made by the Portuguese Tribunal da Concorrência, Regulação e Supervisão to the Court of Justice, seeking guidance on the criteria for proving a ‘discriminatory pricing’ infringement under Article 102(c) TFEU—including whether any restrictive effects identified must be appreciable to engage the prohibition. The reference emerges from domestic proceedings in Portugal concerning a dispute between MEO— Serviços de Comunicações e Multimedia SA (the consumer brand of Portugal Telecom, Portugal’s principal telecommunications operator) and the Portuguese Competition Authority. MEO challenges the refusal of a complaint it filed against the performers’ rights collecting society, Cooperativa de Gestão dos Direitos dos...
CASE HUB (date of judgment—16/07/2015) ARCHIVED This archived case hub sets out the position at the date of the judgment of 16 July 2015; it is no longer maintained. See further: timeline, commentary and related/relevant cases. Case facts Outline A national reference from the Romanian Înalta Curte de Casaţie şi Justiţie was made to the Court of Justice seeking a preliminary ruling under Article 267 TFEU. The referring court sought clarification on whether, in connection with a practice of allocating customers, the number of customers influenced by the arrangement is relevant to determining whether the prohibition in Article 101(1) TFEU is triggered. On 16 July 2015, the Court of Justice held that Article 101(1) TFEU must be interpreted so that, where there is an agreement to allocate customers—which, by its very nature, constitutes a restriction of competition ‘by object’—the count of allocated clients affected is not...
CASE HUB ARCHIVED –this archived case hub reflects the position at the date of the decision of 23 November 2017it is no longer maintained. See further, timeline and commentary. Case facts Outline A reference by the Tribunal Supremo ( Supreme Court of Spain) to the Court of Justice sought a preliminary ruling under Article 267 TFEU on how far a European Commission decision accepting remedies under Article 9 of Regulation 1/2003 binds courts in Member States. The matter concerned the Commission’s 2006 acceptance of commitments offered by Repsol ( Case AT.38348)... Outcome On 23 November 2017, the Court of Justice delivered its judgment, finding that a Commission decision accepting commitments for particular arrangements does not prevent a national court from assessing the legality of those same agreements under antitrust rules and, where necessary, declaring them void pursuant to Article 101(2) TFEU......
CASE HUB ARCHIVED This archived case hub captures the position as at the judgment dated 16 March 2021 and is no longer maintained. See the timeline and relevant/related cases for further detail. Case facts Outline Outline of Cases C‑562/19 Commission v Poland and C‑596/19 Commission v Hungary—appeals to the Court of Justice against the General Court’s judgments in Cases T‑836/19 and T‑20/17, which upheld actions seeking annulment of Commission decisions. Those decisions had found that a Polish retail‑sector levy based on progressive turnover rates ( Case SA.44351) and the Hungarian advertisement tax amounted to State aid ( Case SA.44351). Latest development On 16 March 2021, the Court of Justice delivered its judgments, dismissing both appeals in full. The Court confirmed, among other matters, that Member States may design the tax regime they consider most suitable, meaning the use of progressive taxation lies within each Member State’s...
CASE HUB ARCHIVED –this archived case hub reflects the position at the date of the judgment of 16 July 2015; it is no longer maintained. See further: timeline, commentary and related/relevant cases Case facts Outline National reference from the German Landgericht Düsseldorf to the Court of Justice seeking a preliminary ruling under Article 267 TFEU. The request asks whether the proprietor of a standard‑essential patent ( SEP) who has told a standardisation body it stands ready to offer any third party a licence on fair, reasonable and non‑discriminatory ( FRAND) terms, abuses a dominant market position under Article 102 TFEU by applying for an injunction against a patent infringer, even where that infringer has stated a readiness to discuss such a licence. Clarification is also sought on how an infringing licensee must show such ‘willingness’, specifically whether Article 102 TFEU sets particular...
CASE HUB (remitted to the General Court in Cases T-169/08 RENV and T-421/09 RENV—see Cases T-169/08 RENV DEI v Commission and T-421/09 RENV DEI v Commission ( Greek lignite) [ Archived]) ARCHIVED — this archived case hub reflects the position as at the judgment of 17 July 2014; it is no longer maintained. See further: timeline, commentary and related/relevant cases Case facts Outline Appeals lodged by the European Commission against: the General Court’s judgment annulling the Commission decision of 5 March 2008 (the 'contested decision'), which had found incompatible with Article 86(1) EC (read together with Article 82 EC) the Greek state’s retention of preferential rights benefiting the public undertaking Dimosia Epikhirisi Ilektrismou AE for the exploration and exploitation of lignite deposits; a subsequent General Court judgment which, following that annulment, annulled the Commission decision of 4 August 2009 that had set out...
CASE HUB ARCHIVED This archived case hub sets out the position as at the judgment dated 21 December 2023 and is no longer being maintained. For further details, see the timeline and relevant/related cases. Case facts Outline An appeal was lodged against the General Court’s judgment in Case T‑834/17, which dismissed an action seeking economic damages said to have been suffered as a result of the Commission’s decision of 30 January 2013 prohibiting the United Parcel Service/ TNT Express merger ( Case M.6570). Latest development On 21 December 2023, the Court of Justice delivered its judgment and dismissed the appeal in its entirety. In particular, the Court of Justice held, amongst other things, that: the General Court had not mischaracterised the facts or the Commission’s prohibition decision; the General Court’s judgment provided sufficient reasons; the General Court had not erred in concluding that there was a causal link...
CASE HUB (date of judgment—20/01/2016) See further: timeline, commentary and related/relevant cases Case facts ARCHIVED — this archived case hub reflects the position as at the decision date of 20 January 2016; it is no longer maintained. Outline Toshiba lodged an appeal against the General Court’s ruling that upheld the Commission’s decision of 7 February 2009. That decision found an infringement of Article 101 TFEU and Article 53 EEA and levied a €13.2m fine on Toshiba for its alleged involvement in a cartel relating to the supply of power transformers from 1999 to 2003 (the ‘ Power transformers cartel’). On 20 January 2016, the Court of Justice dismissed the appeal in full, confirming in particular that the ‘ Gentlemen’s Agreement’ at issue was capable of restricting competition within the European Economic Area ( EEA), at least on a ‘potential’ basis......
CASE HUB ARCHIVED This hub records the position as at the judgment dated 28 September 2023; it is no longer being updated or maintained. See the timeline for more details... Case facts Outline Appeals were brought against the General Court’s judgments in Cases T‑378/20 and T‑379/20, which dismissed actions seeking annulment of the Commission decisions of 15 April 2020 and 24 April 2020, respectively, authorising two distinct guarantees under a revolving credit facility of up to SEK 1.5bn in favour of Scandinavian airline SAS to compensate for damage arising from the coronavirus outbreak ( SA.56795 and SA.5601)... Latest developments On 28 September 2023, the General Court delivered its judgment, in which it rejected the appeals in their entirety. In particular, it: dismissed Ryanair’s submissions contesting the proportionality assessment of the aid measures in issue; rejected Ryanair’s allegation that the measures breached the principle of...
CASE HUB ARCHIVED This archived case hub sets out the position as at the judgment date of 03 June 2021; it is no longer maintained. See further, timeline and related cases Case facts Outline An appeal was brought against the General Court’s dismissal of an appeal ( Case T- 222/17) challenging the Commission’s infringement decision on the car battery recycling cartel ( Case AT.40018), aiming to secure a reduction of the fines imposed on Recylex and other undertakings within the same group. Outcome On 3 June 2021, the Court of Justice delivered its judgment, dismissing the appeal in full. Parties Appellants: Recylex SA Fonderie et Manufacture de Métaux SA Harz- Metall Gmb H (together, ‘ Recylex’) Defendant: European Commission (the Commission) Background Recylex is a group of undertakings engaged in the production of recycled lead and other materials, including polypropylene, zinc and special...
CASE HUB ARCHIVED This case hub is archived and shows the position as at the date of the judgment handed down on 11 December 2019; it is no longer being updated or maintained. For further details, please consult the timeline and the relevant/related cases. Case facts Outline An appeal against the General Court’s judgment in Case T- 542 RENV, Alouminion v Commission, by which the Court dismissed an action seeking annulment of the Commission decision concerning aid purportedly granted by Greece to Alouminion tis Ellados through the said preferential electricity tariff ( SA.26117). Latest developments On 11 December 2019, the Court of Justice delivered its judgment and rejected the appeal in full. In particular, it found, among other points, that the General Court neither erred in law when concluding the preferential electricity tariff amounted to State aid, nor failed in its duty to state reasons, nor infringed or...
CASE HUB (date of judgment—19/03/2015) See further: timeline, commentary and related/relevant cases ARCHIVED —this archived case hub reflects the position at the date of the decision of 19 March 2015; it is no longer maintained. Case facts Outline Dole appealed against the General Court’s ruling that affirmed the Commission’s decision of 15 October 2008, which found an infringement and imposed a €45.6m penalty on Dole for its supposed involvement in a cartel concerning supplies of fresh bananas to the northern European market (the ' Bananas cartel'). On 19 March 2015, the Court of Justice rejected the appeal in full. Amongst other matters, the case engages questions on the rights of defence, the approach to calculating fines, and whether the exchange of information—specifically pre-pricing discussions between producers—ought to be legally classified as a restriction 'by...
CASE HUB ARCHIVED This archived case hub records the position as at the judgment dated 10 July 2019 and is no longer being updated. For more, see the timeline and related cases... Case facts Appeal by the Commission against a General Court judgment that partly annulled the Commission’s decision of 4 February 2015 ( Case AT.39861). That decision found a breach of Article 101 TFEU and imposed total fines of €14.9m on international broker NEX for its alleged role in facilitating six cartels in the market for interest rate derivatives denominated in Japanese yen (the ‘ Yen interest rate derivatives’ cartels)... Outcome On 10 July 2019, the Court of Justice delivered its judgment, dismissing the appeal in full. The matter is noteworthy for its use of a ‘hybrid’ settlement: while several parties settled, the Commission continued the ordinary procedure against those declining to settle, as occurred with NEX......
CASE HUB ARCHIVED This archived case hub sets out the position as at the judgment dated 7 May 2020; it is no longer maintained. See further: Case facts Outline Appeal against the General Court’s judgment in Case T‑100/17, which rejected an action seeking annulment of the Commission decision ( SA.33926) concerning specific measures of financial support granted in favour of companies within the Duferco group. Latest developments On 7 May 2020, the Court of Justice handed down its judgment, dismissing the appeal in its entirety and rejecting it in full. The Court found that the General Court had correctly applied the relevant case law by placing the burden on BTB and DPH to show a manifest error in the Commission’s assessment of the facts, one capable of justifying annulment of the contested decision. It further held that the proper principles were applied in...
CASE HUB ARCHIVED This archived case hub captures the position as at the judgment of 8 May 2014; it is no longer maintained. Case facts Outline Appeal brought by Bolloré against the General Court’s judgment upholding the Commission’s readopted decision imposing a €21.263m fine on Bolloré for taking part in a Europe-wide cartel for the supply of carbonless paper from 1992 to 1995 (the ‘ Carbonless paper cartel’). The matter raises issues about adjudication within a reasonable time and the rights of defence during the administrative phase, in particular the function of the Statement of Objections as a procedural safeguard ensuring that fundamental principles of EU law, such as the rights of defence, are respected. Parties Appellant: Bolloré SA Other party: European Commission Bolloré SA (formerly Bolloré Technologies SA) is a French industrial and investment group. Copigraph SA was a wholly owned Bolloré subsidiary within its special papers...
ARCHIVED — this archived case hub reflects the position as at the judgment dated 13 July 2023; it is no longer maintained. See also the timeline and related/relevant cases... Case facts Outline Appeals were lodged against the General Court’s rulings in T‑342/18 and T‑363/18, which had rejected actions seeking annulment of the Commission decision imposing fines on Nichicon and Nippon for their involvement in a cartel in the aluminium and tantalum electrolytic capacitors sector ( AT.40136)... Latest development On 13 July 2023, the Court of Justice delivered its judgment and dismissed both appeals in full... Parties Applicants: Nichicon Corporation ( Nichicon); Nippon Chemi- Con Corporation ( Nippon) Defendant: European Commission (the Commission) Background The investigation commenced in March 2014, with several competition authorities worldwide taking investigative steps (including Commission information requests), followed by further measures thereafter. The Commission confirmed the existence of its inquiry in early June 2015. On 4...
CASE HUB ARCHIVED This archived case hub captures the position as at the judgment dated 7 November 2019 and is no longer updated. For additional information, consult the timeline and relevant/related cases. Case facts Outline Appeal against the General Court’s judgment in Case T‑138/15, which rejected an application to annul Commission decision SA.34646 relating to a Dutch e‑procurement platform. Latest developments On 7 November 2019, the Court of Justice delivered its ruling, dismissing the appeal in full. Parties Appellants: Aanbestedingskalender BV ( Aanbestedingskalender) Negometrix BV ( Negometrix) CTM Solution BV ( CTM Solution) Stillpoint Applications BV ( Stillpoint Applications) Huisinga Beheer BV ( Huisinga Beheer) Respondent: European Commission Background Background On 6 April 2012, the Commission received a complaint alleging aid granted by the Dutch authorities for the development and roll‑out of the e‑procurement platform ‘ Tender Ned’, intended to support the public procurement cycle from notice...
CASE HUB ARCHIVED This archived case hub sets out the position as at the judgment dated 20 April 2023; it is no longer updated. See further, timeline. Case facts Outline Appeal brought against the General Court’s order in Case T‑19/21, which rejected an action for annulment challenging the Commission’s choice to exclude Italy from the scope of its investigation in Case AT.40703— Amazon— Buy Box. Outcome On 20 April 2023, the Court of Justice delivered its judgment, dismissing the appeal in full. Parties Applicant: Amazon.com Inc, Amazon Services Europe Sàrl, Amazon EU Sàrl and Amazon Europe Core Sàrl (together, Amazon) Defendant: European Commission (the Commission) Background On 10 November 2020, the Commission opened an investigation into suspected favourable treatment of Amazon’s own retail listings and of marketplace sellers using Amazon’s logistics and delivery solutions ( AT.40703). The inquiry extended across the EEA except Italy, as the Italian competition authority was already probing...
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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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