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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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Article 101(1) TFEU and Article 102 TFEU bite only on market behaviour—whether agreements/concerted practices or unilateral action—that is liable to appreciably influence trade between EU Member States. This operates as a jurisdictional filter, deciding whether EU or national competition law governs the conduct. Where there is no cross‑border ‘effect on trade’, national rules may apply—for example, French competition prohibitions where the impact is confined to France. The European Commission and the EU Courts have read the inter‑state clause broadly, with the result that Articles 101(1) and 102 can capture national agreements or conduct where there is some foreclosure or an effect on imports. In practice this threshold is a low one. In addition, the inter‑state condition matters less now that all Member States have competition regimes modelled on EU law, so there is little practical difference as to whether EU or Member State law...
Legislative changes effective from 1 October 2015 created a right to collective redress for those affected by anti-competitive behaviour. This includes an opt-out mechanism, enabling an appointed class representative to recover damages for all comparably placed individuals who have not expressly chosen to withdraw. For a general overview of the UK private actions landscape, see UK damages actions... Overview of the process The summary below outlines the collective procedure before the Competition Appeal Tribunal ( CAT) and highlights key distinctions from litigation in the High Court. Topics addressed include: sources of authority how claims are commenced issue of the collective proceedings order rights of class members, and distribution of awards Sources of authority The CAT does not directly apply the Civil Procedure Rules ( CPR) governing cases in the High Court and County Court. It operates under its own...
CASE HUB See further, timeline. Case facts Outline Appeal challenging the General Court’s ruling in Case T‑612/17, which in part sustained an application to annul the Commission’s decision of 27 June 2017 in Google Search ( Shopping) ( AT.39740). Outcome On 11 January 2024, Advocate General Kokott issued her opinion recommending that the Court of Justice uphold the €2.4bn fine imposed on Google for giving preferential treatment to its own comparison shopping service. Parties Appellant: Google LLC and Alphabet, Inc (together, Google) Defendants: The European Commission Background Commission investigation The Commission launched a formal investigation in November 2011 after multiple complaints, including from search service providers, alleging adverse treatment of their services in Google’s organic and sponsored results alongside alleged preferential placement of Google’s own services. On 15 April 2015, the Commission announced the opening of formal proceedings to examine whether Google breached Article 101 and/or Article 102 TFEU through certain...
A conversation with Esteban Rópolo, Partner at Argentine law firm Baker & Mc Kenzie Sociedad Civil, on key issues on merger control in Argentina NOTE—to check whether notification thresholds in Argentina and throughout the world are satisfied, please consult Where to Notify. 1. Have there been notable changes to Argentina’s merger control regime, are any updates expected within the next year, and are there other pressing merger control topics currently arising in Argentina? The Defence of Competition Law No. 27,442 (the Law), enacted on 22 May 2018, introduces a new merger control framework in Argentina. Under the Law, a National Competition Authority ( Authority) is contemplated as a decentralised, self-governing body within the national executive branch, and will act as the competent authority for competition matters across the jurisdiction. The new Authority will comprise, in particular, the Antitrust Court, the Secretariat of...
CASE HUB ( NOTE—appeal brought by the Commission before the Court of Justice in Case C-39/18 P7) ARCHIVED — this case hub records the position as at the judgment dated 10 November 2017 and is no longer being maintained. For more, see: timeline, commentary and relevant/similar cases. Case facts On 4 February 2015 the Commission found six breaches of Article 101 TFEU and levied fines totalling €14.9m on the international broker, Icap, on the basis of Icap’s alleged role in facilitating six cartels in the market for interest rate derivatives denominated in Japanese yen (‘ Yen interest rate derivatives cartels’). Outline Appeal to the General Court seeking annulment, in whole or in part, and/or reductions in the fines imposed in relation to the Commission’s decision of 4 February 2015 concerning the six infringements and the penalties applied to Icap......
CASE HUB ( NOTE—appeal lodged by CEAHR before the Court of Justice in Case C‑3/18 P) ARCHIVED — this archived case hub records the position as at the date of the judgment of 23 October 2017; it is no longer maintained. See further: timeline commentary relevant/related cases Case facts Outline: An appeal was brought before the General Court challenging the European Commission’s decision to reject a complaint by CEAHR. The complaint alleged infringements of Articles 101 and/or 102 TFEU by several watch manufacturers, arising from their refusal to continue supplying spare parts to independent watch repairers. Outcome On 23 October 2017, the General Court delivered its judgment, dismissing in full the action seeking annulment of the European Commission’s decision to refuse CEAHR’s complaint alleging breaches of Articles 101 and/or 102 TFEU by a number of watch manufacturers in relation to the decision not to continue...
CASE HUB ARCHIVED –this archived case hub reflects the position at the date of the abandonment of the transaction on 20 March 2018; it is no longer maintained. See further, timeline. Case facts ARCHIVE 20/03/2018 Outline European Commission merger review of the proposed joint venture between Celanese and Blackstone relating to acetate flake and acetate tow ( Case M.8547). The deal presented horizontal overlaps in the acetate tow market. Latest developments On 20 March 2018, the Commission closed its inquiry after the parties pulled their filing, following their choice to discontinue the transaction. Parties Celanese Corporation is a US-based global technology and speciality materials company with its head office in Irving, Texas. Blackstone is a US-based private equity group. The joint venture would have included Celanese’s Cellulose Derivatives business (together with existing joint ventures with China National Tobacco Corporation) and Blackstone’s Rhodia Acetow business (recently bought from...
CASE HUB ARCHIVED –this archived case hub reflects the position at the date of the decision of 8 April 2019; it is no longer maintained. See further, timeline, commentary and related cases. Case facts Outline European Commission merger probe under Article 14(1) into inaccurate or misleading information submitted by General Electric during the Commission’s 2017 assessment of GE’s purchase of LM Wind. Latest developments On 8 April 2019, the Commission adopted an infringement decision, determining that General Electric had given incorrect information in the 2017 merger review of its acquisition of LM Wind, and imposed an administrative fine of €52m on GE. Parties General Electric ( GE) is a US-based group active across multiple sectors, including: aviation digital energy connections global research healthcare lighting oil and gas power renewable energy transport LM Wind Power Holding ( LM Wind) is a leading...
CASE HUB ARCHIVED This archived case hub reflects the position as at the decision dated 3 May 2020 and is no longer maintained. See also the timeline, commentary and related cases. Case facts Outline European Commission merger investigation under Article 14(1) into inaccurate or misleading information allegedly supplied by Merck during the Commission’s 2015 review of Merck KGa A’s acquisition of Sigma- Aldrich ( M.8181). Latest developments On 3 May 2021, the Commission adopted an infringement decision, concluding that Sigma- Aldrich submitted misleading information in the 2015 merger assessment of Merck KGa A’s planned purchase of Sigma- Aldrich. The Commission imposed a fine of €7.5m on Sigma- Aldrich. Parties Merck KGa A ( Merck): a Germany-based pharmaceutical company. Sigma- Aldrich ( SA): a US-based supplier of laboratory testing materials. Background On 22 September 2014, Merck agreed to acquire SA for US$17bn. The transaction was notified to the Commission on 21 April 2015. On 15 June 2015,...
CASE HUB ARCHIVED – this archived case hub reflects the position at the date of the decision of 18 January 2018; it is no longer maintained. See further, the timeline and commentary. Case facts Outline European Commission merger investigation into the proposed acquisition of NXP Semiconductors by Qualcomm ( Case M.8306). The transaction features horizontal overlaps in semiconductor markets. Latest developments On 18 January 2018, the Commission cleared the transaction subject to commitments. The commitments accepted include a range of behavioural remedies (see below for more details). Parties Qualcomm Incorporated is a US-based company headquartered in San Diego. It is a world leader in 3G, 4G and next-generation wireless technologies and a leading semiconductor company, which develops and supplies integrated circuits for mobile devices, notably cellular baseband chips. Qualcomm also licences the rights to its intellectual property portfolio, including rights to patents that are essential to the...
CASE HUB ARCHIVED –this archived case hub reflects the position at the date of the decision of 18 May 2017; it is no longer maintained. See further, timeline, commentary and related cases. Case facts Outline European Commission merger probe under Article 14(1) into misleading information supplied by Facebook during the Commission’s 2014 review of Facebook’s acquisition of Whats App ( Case M.8228). Latest developments On 18 May 2017, the Commission adopted an infringement decision and levied a €110m fine on Facebook. Parties Facebook is a social media company based in the United States. Background The Facebook/ Whats App ( M.7217) investigation On 19 February 2014, Facebook agreed to purchase Whats App for US$19bn. On 19 May 2014, Facebook filed a Form RS with the Commission requesting review under Article 4(5) after meeting notification thresholds in three Member States; the Commission accepted this as no competent Member State raised objections. Facebook then notified the...
CASE HUB ARCHIVED –this archived case hub reflects the position at the date of the decision of 8 March 2017; it is no longer maintained. See further, timeline and commentary. Case facts Outline European Commission investigation under Article 101 TFEU into four cartels across markets for air conditioning and engine cooling components ( AT.39960). The cartels featured coordination of prices or markets and the exchange of information. Latest development On 8 March 2017, after six manufacturers settled with the Commission and acknowledged their involvement in the four cartels, the Commission issued an infringement decision. Aggregate fines of €155m were imposed. The fines per manufacturer were: Behr–€62,135,000 Calsonic–€1,747,000 Denso–€322,000 (as a result of being granted immunity, Denso was not fined for its involvement in three of the cartels) Panasonic–€0 (as a result of being granted immunity, Panasonic was not fined for the one cartel it was...
CASE HUB (date of judgment—27/04/2017) See further: timeline, commentary and related/relevant cases Case facts ARCHIVED—this archived case hub reflects the position at the date of the decision of 27 April 2017; it is no longer maintained. Outline An appeal was lodged against the General Court’s judgment, which in part upheld the Commission’s decision of 12 October 2011 finding an infringement of Article 101 TFEU and imposing a fine of €8.92m (cut by the General Court to €6.69m) on FSL (jointly and severally with two subsidiaries) for its subsidiary’s alleged involvement in a price‑fixing cartel in southern Europe for the supply of bananas (‘ Exotic fruits— Bananas cartel’). On 27 April 2017, the Court of Justice rejected the appeal in full and thereby affirmed the General Court’s ruling (and the recalculated penalty it set). As part of its decision, the Court of Justice held that the...
CASE HUB Appeals challenging the Commission’s referral to phase II were filed in Case T‑902/16 Heidelberg Cement v Commission and Case T‑907/16 Schwenk Zement v Commission. An appeal against the prohibition decision was also lodged in Case T‑380/17 Heidelberg Cement and Schwenk Zement v Commission. ARCHIVED – this case hub reflects the position as at 5 April 2017 and is no longer updated. See also the timeline, commentary and related cases. Case facts Overview of the European Commission’s merger review of the planned joint purchase of Cemex Croatia by Heidelberg Cement and Schwenk ( Case M.7878). The deal raised horizontal overlap concerns in the grey cement market in southern Croatia. Latest developments On 5 April 2017, the Commission blocked the merger. It found the transaction would markedly lessen competition in Croatian grey cement markets. The Commission also determined that the proposed remedies would not have enabled a...
CASE HUB ARCHIVED This archived case hub reflects the position as at the decision date of 12 January 2017; it is no longer maintained. See further, timeline and commentary... Case facts Outline UK merger review into the completed purchase by VTech Holdings Limited of Leap Frog Enterprises Inc. The deal features horizontal overlaps in UK markets for toddler electronic learning toys and children’s laptops/tablets... Latest developments On 12 January 2017, the CMA gave unconditional clearance to the transaction, confirming its provisional conclusions... Parties VTech Holdings Ltd ( VTech), a Hong Kong-based business, is a worldwide supplier of electronic learning products from infancy through pre-school. Leap Frog Enterprises Inc ( Leap Frog), a US-based educational entertainment firm, designs, develops and sells technology-led learning products and related content for children from infancy into school...
CASE HUB (date of judgment—19/01/2017) See further: timeline and related/relevant cases Case facts ARCHIVED — this archived case hub records the position as at the decision of 19 January 2017; it is no longer maintained. Outline Appeal lodged by the European Commission against the General Court’s judgment partially annulling Commission letters that sought late‑payment interest on a cartel fine issued under the Commission’s ‘ Acrylic glass cartel’ decision. The interest demanded had accrued on a fine levied on Total and Elf — parent companies held jointly and severally liable for the involvement of their subsidiary, Atofina (now Arkema), in the cartel (relating to the supply of a glass alternative known as ‘acrylic glass’) — and arose in the context of measures subsequently adopted by the Commission to give effect to General Court rulings which lowered the fine imposed on Arkema while upholding the parents’ liability for Arkema’s...
This comprehensive database sets out precisely how the European Commission has worked out penalties levied on cartels that have infringed Article 101 TFEU, applying the current fining guidelines. Notes: All cartel penalties imposed pursuant to the 2006 Fining Guidelines are captured in this tracker Only sanctions relating to cartels are covered; penalties for other Article 101 TFEU infringements are excluded from scope Where fields in the tracker are left blank, this signals that the information has not been disclosed publicly Cases are incorporated once the Commission publishes the complete text of the infringement decision......
CASE HUB (appeals lodged at the Court of Justice in Cases C- 271/16 ( Panalpina), Case C- 264/16 ( Deutsche Bahn), C-262/16 ( Schenker) and Case C- 261/16 ( Kühne + Nagel)) ARCHIVED –this archived case hub reflects the position at the date of the judgment of 29 February 2016; it is no longer maintained. See further: timeline commentary related/relevant cases Case facts Outline Applications before the General Court sought annulment, in whole or in part, and/or a substantial decrease in the penalties set by the Commission’s decision of 28 March 2012, which found breaches of Article 101 TFEU and Article 53 of the EEA Agreement and levied aggregate fines of €169 million on 14 undertakings engaged in international freight forwarding for their alleged involvement in four separate worldwide cartels in freight forwarding services (‘ Freight forwarding cartel’). On 29 February 2016, the General Court...
NOTE— Avio has lodged an appeal before the General Court in Case T‑139/18. ARCHIVED – this archived case hub records the position as at the decision of 20 July 2016 and is no longer updated. See further the timeline, commentary and related cases. Case facts The European Commission conducted a merger review of the proposed acquisition of Arianespace ( Case M.7724) by Airbus Safran Launchers ( ASL, a 50/50 joint venture controlled by Airbus and Safran). The deal raised vertical overlap issues across satellite and launch service markets. Latest developments On 20 July 2016, the Commission approved the transaction subject to commitments designed to prevent competitive harm from potential exchanges of sensitive information between the firms. The parties will: Set up firewalls between Airbus and Arianespace to block information flows that could disadvantage rivals; specifically, they will not share third‑party information beyond what is...
CASE HUB ARCHIVED – this case hub captures the position as at the 14 March 2013 judgment date; it is no longer being maintained. See also: timeline, commentary and related/relevant cases Case facts ( ARCHIVE 14/03/2013) Outline Appeals were lodged with the General Court seeking annulment or a reduction in the levels of fines imposed under the Commission’s decision of 15 October 2008, which found a breach of Article 81 EC and levied penalties of €45.6m on Dole and €14.7m on Del Monte (jointly and severally with Weichert) for alleged involvement in a cartel concerning the supply of fresh bananas to the northern European region (the ‘ Bananas cartel’). On 14 March 2013, the General Court upheld the infringement finding (on the merits) in relation to both appeals—holding, in particular, that the information concerned was not in the public domain and that swapping...
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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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