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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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This Resource Note spotlights commentary, analysis and materials to aid interpretation and give practical guidance on applying Chapters 1, 1A, 1B and 1C of the Disclosure Guidance and Transparency Rules: DTR 1, DTR 1A, DTR 1B and DTR 1C respectively. Materials referenced here include, where pertinent: the Financial Conduct Authority ( FCA) Handbook FCA Knowledge Base guidance— Procedural notes and Technical notes (constituting formal guidance and binding on the FCA) FCA consultation papers, discussion papers, policy statements, feedback statements and warnings Primary Market Bulletins and other FCA publications former UKLA technical and procedural notes and the UKLA newsletter List!, where still relevant to interpreting or applying a provision assimilated EU legislation EU Directives and EU Regulations, where relevant to interpreting a provision Lexis+ UK analysis and...
An acquisition of a company or of business and assets in a private equity buyout, although comparable to a standard acquisition, carries several notable differences. These arise chiefly from the roles and status of the parties involved—the private equity investor, the management team, the buyer (or newco) and the seller. For further guidance on structuring a private equity investment, see Practice Note: Buyouts. This Practice Note examines the key elements of due diligence and the acquisition documentation. Due diligence As with any share or business and asset purchase, both management and the private equity investors must carry out their own due diligence investigations into the target business. Purpose From the buyer’s standpoint, due diligence aims to highlight potential deal breakers at an early stage, to identify risk areas and evaluate how the target manages those risks, and to agree where ultimate...
This Practice Note This Practice Note collates relevant judgments on the National Security and Investment Act 2021 ( NSIA 2021) and monitors transactions where the UK government has stepped in on national security grounds......
This Practice Note sets out the function of a notary, the process for notarising a document, and the concept of legalisation. For further detailed guidance, consult the following Practice Notes: notaries notarisation legalisation We have assembled a comprehensive, interactive collection to assist users in identifying and navigating concepts and recurring issues arising on the execution of documents. Each stage includes Practical Guidance, Precedent Clauses and Q& As tailored to that phase. For more details, see: Execution collection. Notaries A notary is a qualified lawyer whose principal role is to authenticate and certify signatures and documents, whether intended for use overseas or as certified copies. Notaries also administer and take oaths and affirmations, and may undertake certain reserved activities under the Legal Services Act 2007, including commercial and property matters, as well as family and private client work (but not...
Shares in a company can be transferred in a range of scenarios, notably: a sale of the shares (the most common); a transfer on the grant or enforcement of security; a gift of shares; a company buying back its own shares; transmission by operation of law (eg following a shareholder’s death or bankruptcy). This Practice Note concentrates on sales that are not share buybacks. For buybacks, see Practice Note: How to carry out a share buyback. For gifts, see Commentary: Gifts of shares: Gore- Browne on Companies 23[9]. For enforcement of security over shares, see Practice Notes: Enforcement—share security and Taking security over uncertificated shares held in CREST. For transmission queries, see Q& A: Can personal representatives transfer shares in a company without a grant of...
Where a provision within the Companies Acts permits or obliges documents or information to be delivered or supplied to a body corporate (however phrased), the individual sending or supplying it must observe sections 1144–1148 and Schedule 4 of the Companies Act 2006 ( CA 2006), which set out the company communications provisions. The Companies Acts are defined in CA 2006, s 2, and include CA 2006 itself, save for ss 1182–1283. For the purposes of the company communications provisions, any reference to a document extends to a summons, notice, order, other legal process, or register. The company communications provisions are subject to any requirements imposed, or inconsistent provision made, by or under any enactment. Nevertheless, such a provision is not to be treated as inconsistent with the company communications provisions simply because it expressly authorises a document or information to be sent or...
Company voluntary arrangement ( CVA) A company voluntary arrangement ( CVA) is a binding contract between a company and its creditors. A CVA proposal must include one or both of the following: paying a lump sum instead of a larger debt or other obligation; and/or providing for less than the full release or discharge of creditors’ debts However, a CVA cannot be used to change the rights of secured creditors, or to alter a preferential creditor’s priority, unless the affected creditors agree. For any CVA put forward within 12 weeks of the end of a moratorium under the Corporate Insolvency and Governance Act 2020 ( CIGA 2020), the holders of any unpaid moratorium debts and priority pre‑moratorium debts effectively have a veto: neither the company nor the creditors may approve the CVA unless those debts are paid in full, unless the creditors consent; CIGA 2020, Sch 3,...
The provisions that govern annual accounts and reports for unquoted companies are contained in: Part 15 of the Companies Act 2006 ( CA 2006) the Large and Medium-sized Companies and Groups ( Accounts and Reports) Regulations 2008, SI 2008/410 ( Large Companies Regulations) the Companies, Partnerships and Groups ( Accounts and Reports) Regulations 2015, SI 2015/980 (2015 Regulations) This Practice Note explains the accounting regime as it applies to companies under the 2015 Regulations. A company qualifying for the unquoted companies regime is subject to less onerous accounting and reporting obligations than a company within the quoted company regime. For an overview of the statutory framework for company annual accounts and reports, see Practice Note: Accounts and reports—an outline of the statutory framework. When the unquoted companies regime applies An unquoted company, as defined in CA 2006, is a company formed and...
This Practice Note examines the requirement that a company’s annual accounts be audited in accordance with Part 16 of the Companies Act 2006 ( CA 2006), together with the statutory requirements of CA 2006 and other relevant legislation relating to the contents of the auditor’s report. Additional rules may apply to a company’s audit obligations where it is a listed company, an AIM company, or a company with securities admitted to the AQSE Main Market, AQSE Growth Market or AQSE Trading (formerly NEX Exchange Main Board, NEX Exchange Growth Market and NEX Exchange Secondary Market); however, those are outside the scope of this Practice Note. Requirement for a company to audit its accounts Under CA 2006, s 475, a company is required to ensure that its annual accounts for a financial year are subjected to audit in accordance with CA 2006, Pt 16, save where the...
The statutory framework governing the annual accounts and reports of medium-sized companies is found in: Part 15 of the Companies Act 2006 ( CA 2006) the Large and Medium-sized Companies and Groups ( Accounts and Reports) Regulations 2008 ( Large Companies Regulations) the Companies, Partnerships and Groups ( Accounts and Reports) Regulations 2015 (2015 Regulations) the Companies ( Accounts and Reports) ( Amendment and Transitional Provision) Regulations 2024 (2024 Regulations) This Practice Note focuses on the accounting regime applicable to companies under the 2015 Regulations, as amended by the 2024 Regulations. For a broad overview of the legislative framework for company annual accounts and reports, see Practice Note: Accounts and reports—an outline of the statutory framework. When the medium-sized companies regime applies The regime applies to a company for a financial year where the company: qualifies as...
This material considers the UK GDPR regime This material addresses the UK GDPR framework, with legislative references pointing to Assimilated Regulation ( EU) 2016/679, the UK General Data Protection Regulation ( UK GDPR) and the Data Protection Act 2018 ( DPA 2018), unless expressly stated otherwise. For a fuller introduction to the UK GDPR, see Practice Notes: The UK General Data Protection Regulation ( UK GDPR) and UK GDPR and EU GDPR—comparison. This Practice Note examines employment-related data protection issues that arise in connection with: a share purchase, where the buyer assumes ownership of the company that operates the business (the target company), thereby acquiring all of its assets, obligations and liabilities, whether or not the buyer knew of them—see: Share purchases: employment issues—overview an asset purchase, where, instead of buying the target company, the buyer selects the assets and...
This Practice Note explores the function and significance of boilerplate clauses within a contract. It highlights the boilerplate provisions most frequently seen in transaction-related agreements and considers the method to adopt when reviewing or drafting agreements that contain boilerplate terms. Solicitors handle an extensive range of transactions, yet every one of them will, in some respect, involve written contracts. Each of those contracts ought to include certain boilerplate provisions. What is boilerplate? There is no universally accepted definition of a ‘boilerplate’ clause. Such clauses are often regarded as standard, catch-all terms. They are routinely accepted with minimal thought or bargaining, but treating them this way is risky. It is better to view ‘boilerplate’ as a label for the clauses inserted to govern the mechanics of how the agreement operates and the legal considerations common to most transactions. They are typically located at the start and the close of an...
This Practice Note explores the Financial Conduct Authority ( FCA)’s expectations of culture within financial services firms, and how regulatory instruments such as the Senior Managers & Certification Regime ( SM& CR) and the Consumer Duty are used to direct FCA supervision and enforcement towards firms’ cultural frameworks. Although the FCA is the dominant conduct regulator in this space, the Prudential Regulation Authority ( PRA) also scrutinises how culture influences prudential risks, which is considered below. Key points addressed include: regulators’ position that culture is a principal driver of conduct outcomes and market integrity the expectation that culture is actively owned and overseen by firms and their senior managers the connection between culture, psychological safety and challenge, and how the SM& CR, amendments to the Conduct Rules to reflect the FCA’s expectations on...
This archived Practice Note captured the principal developments anticipated to influence the corporate governance regime in 2019. It has not been updated since 2019. For developments from January 2020 onwards, see Practice Note: Corporate governance horizon scanning—2020 and beyond. Please send suggestions for topics we might track to Knowhow Lawyers Corporate@lexisnexis.co.uk... Mini-index January 2019 February 2019 March 2019 April 2019 June 2019 July 2019 September 2019 October 2019 No specific date in 2019 confirmed 2020 and beyond January 2019 From 1 January 2019, the revised UK Corporate Governance Code ( UKCG Code) applies to premium listed companies with accounting periods beginning on or after that date. The update stems from the government’s response to the Green Paper Consultation on Corporate Governance Reform, together with the Hampton- Alexander Review and the Parker Review. Headline changes address...
ARCHIVED: This content was published in 2018 and is not maintained. This Market Standards Trend Report reviews current market practices and developments arising from the FTSE 350 annual general meeting ( AGM) season for 2018......
Gross negligence manslaughter Gross negligence manslaughter is a common law offence arising where an individual’s failings meet strict criteria. It is committed when the offender: owes the victim a duty of care and breaches that duty and that breach leads to the victim’s death and, given the risk involved, their behaviour is so seriously deficient that it amounts to a criminal act or omission For guidance on manslaughter by gross negligence, see Practice Note: Involuntary manslaughter. Only a person can commit gross negligence manslaughter; it should not be mistaken for manslaughter attributable to a company, which is a statutory offence under the Corporate Manslaughter and Corporate Homicide Act 2007. For information on corporate manslaughter, see: Corporate manslaughter—overview and Practice Note: Corporate manslaughter—an introductory guide. Sentencing of organisations for corporate manslaughter is covered by the Crown Court...
This brief overview explains the process for registering a new foreign company with a UK establishment, in line with the Companies Act 2006 ( CA 2006) and the Overseas Companies Regulations 2009 ( OC Regs). For a fuller review of the matters and procedures typically involved in the registration, operation and closure of an overseas company with a UK presence, see Practice Notes: Overseas companies with an establishment in the UK, Overseas companies in the UK—ongoing operation and Overseas companies in the UK—winding up, liquidation, insolvency and closure. The framework for registering an overseas company trading in the UK is separate and distinct from the registration of overseas entities with an interest in UK property, which commenced in August 2022. For further information on the register of overseas entities that own UK property, see Practice Note: Register of overseas entities that hold UK...
In family enterprises, succession is a complex, multi-faceted journey, not a one-off moment. The enduring challenge is to balance the interests of the owners, the business itself, and the wider family and its interests. It requires input from advisers with diverse technical specialisms and backgrounds; to help them collaborate effectively in the family firm's best interests, it is useful to view succession as moving through a series of distinct, successive stages over time. If any stage is overlooked or poorly handled, the transition may stall or prove unsuccessful. The phases are preparation, disengagement, exploration, choice and implementation, and the tasks within each are set out below. Preparation In readiness for transferring the family business: the family must acknowledge and accept that change is unavoidable they should invest in learning from what other families have done and gather information and insights on the latest...
There are different types of family constitution: unwritten written or part-written codified Unwritten family constitution Many family enterprises operate without a documented constitution. Stakeholders often characterise governance as simply ‘how we do things round here’, and they will assure outsiders that lacking a written constitution or formal structures (for example, an active board or family council) does not equate to disorder. Everyone understands what is required of them, what they may expect of others, and they act in ways that sustain the family’s implicit rules. These arrangements are not solely the product of intentional design or official decisions. Much of the governance of a family firm emerges organically from countless day‑to‑day interactions—within the family business and with the wider world. Over time, these encounters give rise to habitual practices that become embedded, forming part of the business’s folklore and serving as the...
Family office The phrase ‘family office’ spans a wide array of circumstances, so there is no universally agreed definition. The Family Firm Institute, however, characterises a family office as: ‘ A separate entity apart from the operating business (and sometimes created with the assets realised after the sale of a family enterprise) consisting of a diversified wealth portfolio held for the benefit of the family’ ( Family Enterprise; understanding Families in Business and Families of Wealth Wiley 2014 (not reported by Lexis Nexis®)). Such offices are largely, and more commonly, the preserve of high net worth—indeed ultra high net worth—families (ie those with investable assets above $30m), with varied holdings and complex affairs. That complexity can create scope for disputes. Nonetheless, with a well-designed structure supported by a clear strategy and effective family governance, a family office can yield substantial...
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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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