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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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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 Botswana? To determine if notification thresholds in Botswana and across the world are met, see further: Where to Notify......
The EU merger control framework, set out in the EU Merger Regulation ( EUMR), rests on the ‘one‑stop shop’ principle for overseeing concentrations within the EEA. It vests the European Commission (the Commission) with exclusive jurisdiction to assess transactions that amount to a concentration (as defined in Article 3 EUMR) and that meet the turnover thresholds in Article 1(2) or (3) EUMR (and therefore have an EU dimension). Consequently, by virtue of Article 21(3) EUMR, Member States are barred from applying their national competition laws to such EU‑dimension concentrations. The EUMR seeks to streamline the review of certain large‑scale, pan‑ European deals before a single authority (ie, the Commission), rather than exposing them to potentially duplicative assessments by multiple national competition authorities across the EU. It also provides referral mechanisms between the Commission and Member States to ensure the...
CASE HUB ARCHIVED This archived case hub records the position as at the judgment on 29 April 2015; it is no longer maintained. See further timeline, commentary and related cases. Case facts ARCHIVE Appeal subsequently lodged at the Court of Appeal. Outline Appeal brought by the Federation of Independent Practitioner Organisations against the CMA’s final decision arising from its private healthcare market investigation ( CAT case number 1230/6/12/14). The CAT delivered its judgment on 29/04/2015. Parties The Federation of Independent Practitioner Organisations ( FIPO) — representing most UK medical organisations and, in turn, their consultant members in private practice. Competition and Markets Authority ( CMA). Markets Privately funded healthcare in the UK, covering independent private hospitals and private patient units within NHS hospitals. The private healthcare market was examined by the CMA, which identified various competition concerns and ordered remedies, including: the divestment by HCA of either the London...
CASE HUB ARCHIVED This archived case hub presents the position as at the judgment dated 21 Mary 2015 and is no longer maintained. For further details, see the timeline, commentary and related cases. Case facts Outline Appeal by HCA International Limited against the CMA’s final decision in the private healthcare market investigation ( CAT case number 1229/6/12/14). Parties HCA International Limited ( HCA) — one of the three largest private hospital groups in the UK. Competition and Markets Authority ( CMA). Market(s) Privately funded healthcare services in the UK, spanning independent private hospitals and private patient units in NHS hospitals. HCA was a principal party in the CMA’s private healthcare market investigation and was required to divest either one or two named hospitals in central London, amongst other remedies. Background HCA lodged its appeal on 30 May 2014 (the application was published on 4 June 2014), one of three appeals...
CASE HUB ARCHIVED This archived case hub sets out the position as at the judgment dated 12 November 2018; it is no longer updated. For more detail, see the timeline, commentary and related/relevant cases. Case facts Guardian Industries Corp and Guardian Europe Sàrl (together, Guardian) appealed the General Court’s ruling which rejected Guardian’s action seeking partial annulment of the Commission’s decision of 28 November 2011. That decision fined Guardian for taking part in a cartel concerning the supply of flat glass in the EEA (the ‘ Flat glass cartel’). Outline On 12 November 2014, the Court of Justice partly overturned the General Court’s judgment and lowered Guardian’s penalty from €148m to €103.6m. The dispute addresses how captive sales are treated when calculating fines and also the requirement that courts rule within a reasonable...
Intellectual property laws grant exclusive entitlements to holders of patents, copyright, design rights, trade marks and other protected rights. Owners of intellectual property rights ( IPRs) may stop unauthorised use of their IP and may exploit it, for instance by granting licences to third parties. However, the ability to commercialise does not shield IPRs from scrutiny under competition law. Like any other arrangement, deals involving IPRs (e.g., licences enabling a licensee to use the licensor’s IPRs) must comply with Article 101(1), TFEU. For many would-be licensees and licensors, the initial task in checking whether their arrangements accord with EU competition rules is to consider if a block exemption regulation can apply. The block exemption most commonly relevant to an IP licence is the Technology Transfer Block Exemption Regulation ( TTBE, Regulation 316/2014), the latest iteration of which took effect on 1 May 2014 and...
CASE HUB ARCHIVED this archived case hub outlines the position as at the judgment dated 10 April 2014; it is no longer being maintained now...
ARCHIVED: The revised Horizontal Guidelines appeared in the Official Journal on 21 July 2023. This Practice Note was prepared with the earlier Horizontal Guidelines in mind. It is no longer maintained. For up-to-date content, please refer to the relevant section in Analysing horizontal co-operation agreements under EU competition law. What is a joint commercialisation agreement? Joint commercialisation agreements entail co-operation between rivals concerning the sale, distribution, or promotion of interchangeable products. Such arrangements span from deals that jointly set every commercial element of selling the products (including price) to narrower pacts tackling a single commercialisation task (for example, distribution, after-sales support, or advertising). These agreements can produce substantial advantages derived from economies of scale or scope, notably for smaller manufacturers. Yet, in some situations they may trigger serious competition law issues, especially where the parties hold a meaningful degree of market power, the...
Introduction Block exemption regimes provide widely applicable safe harbours from the EU prohibition on anticompetitive agreements as set out in Article 101(1) TFEU, so long as the arrangement satisfies the requirements of the relevant block exemption. Each such instrument rests on the presumption that any restrictive deal within its compass fulfils the four criteria in Article 101(3) TFEU that are needed for an individual exemption from the application of Article 101(1) TFEU (see further, Article 101(1) TFEU—the prohibition on restrictive agreements and Individual exemptions under Article 101(3) TFEU). Accordingly, every block exemption establishes a safe harbour that shields restrictive arrangements from legal challenge under Article 101 TFEU. The former Specialisation Block Exemption Regulation ( EU) 1218/2010 ( SBER 2010), which expired on 30 June 2023, had been in force since 1 January 2011. Following a review process and consultation with...
CASE HUB Note—appeals were lodged before the General Court in Cases T‑419/14, T‑422/14, T‑438/14, T‑439, T‑441/14, T‑444/14, T‑445/14, T‑446/14, T‑447/14, T‑448/14, T‑449/14, T‑450/14, T‑451/14, T‑455/14 and T‑475/14; see Cases T‑422/14 et al – Viscas and others v Commission (power cables cartel) [ Archived]. Archived – this hub records the position as at the 2 April 2014 decision date and is no longer maintained. See further, timeline and commentary. Case facts Outline of the European Commission’s Article 101 TFEU investigation into a cartel in the market for high‑voltage power cables ( AT.39610). On 02/04/2014 the Commission imposed fines totalling €301.6m. Parties ABB Nexans Prysmian (previously Pirelli) J‑ Power Systems (previously Sumitomo Electric and Hitachi Metals) VISCAS (previously Furukawa Electric and Fujikura) EXSYM (previously SWCC Showa and Mitsubishi Cable) Brugg NKT Silec (previously Safran) LS Cable Taihan The defendants comprise most of the world’s leading producers of high‑voltage power cables. Several companies originally in the cartel combined their activities into joint...
NOTE— To check whether notification thresholds in Finland and across the globe are met, see: Where to Notify. 1. There have been recent developments regarding the Finnish merger control regime. What are the main points of interest and are any further updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Finland? Finnish merger control is governed by the Competition Act ( No. 948/2011), which took effect on 1 November 2011 and repealed the Act on Restrictions on Competition ( No. 480/1992). Merger control provisions were first introduced into Finnish competition law on 1 October 1998. The 2011 Act revised the merger control framework, principally to align it more closely with EU rules. Notably, the former dominance test was replaced by the SIEC test used by the European Commission ( Commission), and procedural rules were adjusted to further...
This archived case hub captures the position as at the decision date, 17 June 2014; it is no longer maintained. For more, see timeline, commentary and related cases. Case facts Outline Outline of the European Commission’s Article 101 TFEU investigation into a cartel in the car and truck bearings market ( COMP/39.922). Latest development On 19 March 2014, the Commission formally issued its enforcement decision, and it was publicly announced that all six defendants had settled with the Commission......
CASE HUB ARCHIVED This archived case hub records the position as at the judgment of 20 March 2014 and is no longer updated. For additional detail, consult the timeline, commentary and related or relevant cases. Case facts Outline An appeal was brought before the General Court seeking annulment of the Commission’s decision of 23 February 2010 (the “contested decision”), which refused Reagens Sp A access to specific documents in the Commission’s administrative file from the “ Heat stabilisers” cartel investigation, under Regulation 1049/2001 on public access to European Parliament, Council and Commission documents. Reagens had been an addressee of the Commission’s decision of 11 November 2009, which found that it had taken part in an EEA‑wide cartel concerning heat stabilisers. Unlike another addressee, Reagens was unsuccessful in a request—lodged before adoption of the infringement decision—for a reduction of the fine on the basis of...
CASE HUB ARCHIVED This archived case hub records the position as at the judgment dated 20 March 2014; it is no longer being maintained. Case facts ARCHIVE—20/03/2014 Outline Appeal before the General Court seeking annulment and/or a reduction of the penalty arising from the Commission’s decision of 11 November 2009, which found infringements of Article 101 TFEU and Article 53 EEA and imposed a fine linked to Faci’s involvement in EEA-wide cartels in the market for tin and ESBO/esters heat stabilisers. Amongst other matters, the case concerns whether the Commission has produced evidence that, to the requisite legal standard, demonstrates circumstances amounting to an infringement. Parties Applicants: Faci Sp A ( Faci) Defendant: European Commission Faci is an Italian company, with a presence in the UK and Spain, which manufactures and supplies, amongst other products, epoxidised soya bean oil and...
Note—for guidance on whether notification thresholds in Switzerland and globally are triggered, see: Where to Notify. 1. Have there been any recent developments regarding the Swiss merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Switzerland? On 24 November 2021, the Swiss Federal Council released a preliminary draft proposing a partial overhaul of the Cartel Act ( ACart). These amendments aim to enhance the ACart’s effectiveness. Central to the package is the modernisation of Switzerland’s merger control framework. The update focuses on bringing Swiss practice in line with EU and global standards. Replacing the current dominance-plus test with the significant impediment to effective competition ( SIEC) standard would align Swiss review practice with the EU and international approaches, reducing the threshold for authority to step in. Proposals on merger control envisage...
NOTE—to check whether notification thresholds in Greece and worldwide are satisfied, consult Where to Notify. 1. Have there been any recent developments regarding the Greek merger control regime and are there any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Greece? The Greek merger control system is anchored in the Protection of Free Competition Act ( Law 3959/2011), together with decisions of the Hellenic Competition Commission ( HCC), and the pertinent EU merger control instruments, ie the EU Merger Regulation and the European Commission’s Consolidated Jurisdictional Notice. In substance, the national framework closely tracks the EU model, and HCC determinations are generally aligned with EU case-law and established practice. In January 2022, Law 3959/2011 was revised by Law 4886/2022, introducing a broad suite of reforms across the entirety of Greece’s competition law...
CASE HUB ARCHIVED – this case hub is archived and reflects the position as at the judgment dated 27 February 2014; it is no longer maintained. See further: timeline, commentary and related/relevant cases. Case facts Outline Appeals were brought before the General Court seeking partial annulment and a reduction of the fines arising from the Commission’s decision of 8 December 2010 (which was addressed to six recipients), which found infringements of Article 101 TFEU and Article 53 of the EEA Agreement and imposed combined penalties of €648.9m on five companies for their alleged participation in a liquid crystal display panels ( LCD panels) cartel between October 2001 and February 2006. On 27 February 2014, the General Court rejected most of the arguments advanced and, in large part, thereby upheld the substance of the Commission’s decision. Nevertheless, the General Court slightly lowered the fines imposed on each...
An interview with Mark Katz, a partner at the Canadian firm Davies Ward Phillips & Vineberg LLP, exploring central questions about merger control in Canada. NOTE—to check if notification thresholds in Canada and worldwide are satisfied, refer to: Where to Notify. General overview of the key merger control regimes in Canada General overview of the Competition Act merger control regime The Competition Act (the Act) authorises the Commissioner of Competition (the Commissioner) to contest mergers that are likely to prevent or lessen competition substantially in a relevant market affecting Canada. The Commissioner leads the Competition Bureau (the Bureau), which is tasked with investigating merger transactions to assess whether they are expected to produce the specified anti-competitive effect. For these purposes, the concept of a merger is expansive. Beyond acquisitions that confer control—defined as securing a greater than 50% interest in the target entity—a merger also captures any...
CASE HUB ARCHIVED —this archived case hub sets out the position as at the judgment of 4 September 2014; it is no longer being maintained. See further: timeline, commentary and related/relevant cases Case facts Outline An appeal was brought challenging the General Court’s judgment, which upheld the Commission decision of 19 September 2007, in so far as it concerned YKK Corporation and its subsidiaries’ participation in a price‑fixing cartel for fasteners and attaching machines (the ' Fasteners cartel'). The matter centres on questions tied to joint and several liability and, notably, how to calculate the 10% turnover upper limit for fines imposed in the setting of successive liabilities. Parties Appellants: YKK Corporation ( YKK) YKK Holding Europe BV ( YKK Holding) YKK Stocko Fasteners Gmb H ( YKK Stocko) Other party: European Commission YKK, a Japanese undertaking, is a global leader in the zip fasteners market and is active in...
is widely acknowledged as an ‘exclusionary’ abuse under Article 102 TFEU: behaviour by a dominant undertaking that deliberately targets competitors and seeks to remove them or erode their viability as rivals (either by driving them out of the market or by deterring entry). In essence, a dominant firm forgoes profit in the short term to oust or discourage competitors. Once the dominant firm has effectively shut out current competitors or potential entrants, the dominant undertaking will have reinforced its position and be able, at least in theory, to levy supra-competitive prices and/or diminish its downstream offerings without facing consequences as a result of exclusion......
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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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