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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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ARCHIVED : This Practice Note has been archived and is not maintained. Lawyers and the businesses they counsel must grasp their exposure to sanctions in order to craft and roll out a robust compliance plan. However, the contours of sanctions compliance shifted after the UK’s choice to exit the EU. Up to 11 pm on 31 December 2020 (the end of the implementation period), the bulk of the UK’s sanctions regimes derived from the EU, via EU regulations that applied directly in Member States; criminal offences and licensing arrangements were then put in place by UK regulations under the European Communities Act 1972. Domestically, UK sanctions were confined to (very unusually) freezing orders under the Anti- Terrorism, Crime and Security Act 2001 ( ACSA 2001), transactional measures directed under the Counter Terrorism Act 2008 ( CTA 2008), and...
This Practice Note forms part of the Lexis+® UK Corporate Private equity buyout transaction collection. Timing Completion of a private equity buyout ( MBO) may occur at the same time as signing and executing the formal documentation, or on a subsequent date. Where completion of the acquisition and/or equity element is subject to conditions, the parties will exchange and complete later (split exchange and completion). If there are no conditions, completion will be contemporaneous with signing. Post-completion timetables depend on the specific task: some must be dealt with immediately after completion, while others arise only in particular scenarios or may not involve the parties’ lawyers at all. Immediate steps include paying stamp duty and making filings at Companies House. Contingent actions may include bringing a warranty claim, if circumstances warrant it. Operational payments, such as earn-out...
Holding This Practice Note outlines the law, guidance and customary practice concerning the conduct of an annual general meeting ( AGM) in practice. It is intended for both practitioners and company secretaries working with private companies limited by shares and unlisted public companies limited by shares. For information on the notice obligations for an AGM of a private company or an unlisted public company, see Practice Note: AGMs—notice requirements for private and unlisted public companies. A public company must convene an AGM every year within a six‑month period beginning on the day after its accounting reference date. A private company is not obliged to hold an AGM, although it may opt to do so, or its articles of association may stipulate that it must. Detailed provisions on calling and holding an AGM are contained in the Companies Act 2006 ( CA 2006). These cover both the...
The directors of a company are responsible for the day to day management of that company. Its board is entrusted with authority and day-to-day control by the articles of association, by common law and by members’ resolutions, empowering directors to act for the company. That authority is curtailed by any constraints in the articles, by the statutory duties of directors under the Companies Act 2006 ( CA 2006), and by matters that CA 2006 reserves to the members (for example, member consent is needed where the company proposes certain dealings with its directors). In contrast to the clear rules for members’ decisions—taken by written resolution or at a general meeting or annual general meeting— CA 2006 sets out no regime for how directors themselves reach decisions. Larger companies that follow a corporate governance code, such as the Financial Reporting Council’s UK Corporate...
The Health and Safety Executive ( HSE) reports that electricity and unsafe electrical work still often cause serious injury and death to workers and non-workers in the UK. Main hazards are: contact with live parts causing shock and burns injury from exposure to electrical arcing burns where static discharge ignites workplace flammables fires and explosions from poor installations and faulty equipment Electrical safety is a key part of health and safety management. See Practice Notes: How to manage health and safety in the workplace and Health and safety in the workplace—regulatory requirements. Key workplace electrical safety laws Relevant regulations include: The Electricity at Work Regulations 1989, SI 1989/635 The Supply of Machinery ( Safety) Regulations 2008, SI 2008/1597 Electrical Equipment ( Safety) Regulations 2016, SI 2016/1101. See Practice Note: Electrical equipment safety Management of Health and Safety at Work Regulations 1999, SI 1999/3242 The Plugs and Sockets etc ( Safety) Regulations 1994, SI...
ARCHIVED: This Practice Note is archived, not maintained, and provided for background use only. For further details on the Prospectus Regulation, see Practice Note: The UK Prospectus Regulation—essentials [ Archived]. Introduction to the Prospectus Regulation roadmap The Prospectus Regulation ( EU) 2017/119 ( PR) was published in the Official Journal of the European Union on 30 June 2017 and took effect on 20 July 2017, with most provisions applying from 21 July 2019. The PR materially revises the prospectus publication obligations contained in the Prospectus Directive 2003/71/ EC (the PD). As a regulation, it has direct applicability across Member States. This Practice Note sets out an article-by-article roadmap of the PR, detailing for each article: the article title and number, and the corresponding PD provisions For additional guidance on the PR, see Practice Notes: The UK Prospectus...
Reviewing technical reports If a technical environmental report has been obtained by the buyer during the due diligence process (or supplied by the seller in the data room), it requires interpretation, followed by clear, practical advice to the client on potential liability exposure and recommended measures to mitigate the associated risks. Key issues for lawyers to assess are: Does the report set out clear evidence of environment, health and safety ( EHS) non-compliance, capex needs or potential liabilities? Should an independent environmental consultant be engaged to review and challenge the conclusions of the environmental report? Would a conference call or meeting between the respective environmental consultants (with clients and lawyers present) help to resolve issues of concern? Are any further investigations or enquiries required, and if so, what are the timing and cost...
The asset purchase agreement ( APA) The asset purchase agreement ( APA) is generally prepared during the preliminary or due diligence stage and completed within that same stage. The buyer’s solicitors typically produce the initial draft of the APA and send it to the seller’s solicitors for mark-up. Negotiations will often carry on until the APA is executed and signed finally......
New starters share purchase transactions collection ( EHS issues)—warranties Acting for a seller The precedent for Environment, Health and Safety ( EHS) warranties in a share purchase agreement—seller’s version—provides a pared-back set of EHS assurances intended for use when representing a seller. Definitions are intentionally broad, and no warranties are offered for contaminated land. The warranties are limited to these core topics: environmental permits observance of EHS law claims and litigation Practitioner tip Other warranties in the SPA can also bear on EHS matters, in particular: general warranties on compliance, licences and litigation property warranties (asbestos in buildings, neighbour disputes, land condition and flooding) employee warranties relating to health & safety claims......
This Practice Note reviews the Principles of Corporate Governance ( Principles) issued by the Group of 20 ( G20) together with the Organisation for Economic Co-operation and Development ( OECD). It offers brief background on the OECD and the G20 and explains the aims of the Principles. The note also highlights the main recommendations and how they shape policy makers’ agendas worldwide in practice today. OECD The OECD is an international organisation consisting of 38 member states. Established in 1961, its mission is to advance policies that enhance the economic and social well-being of people across the globe. It collaborates closely with emerging markets such as China, India and Brazil, and with other developing economies throughout Africa, Asia, Latin America and the Caribbean. Further details are available on the OECD website for interested readers to consult. G20 The G20 is an...
A demerger is a form of corporate reorganisation enabling a company to separate its operations. This separation occurs when the company transfers one or more elements of its business to one or more other companies, which may sit within its group or be outside it. The recipient (transferee) company can be overseen by the same directors as the transferor, or by different directors. Shares in the transferee are usually held by at least some of the transferor’s shareholders, though the way those shares are apportioned between them may vary. Key features of a demerger preservation of business (the demerged business continues after the demerger, and is carried on separately) preservation of shareholders (the demerged business will usually be owned by some mix of the shareholders who owned it before the demerger, ie taken as a whole, the shareholder base is the same before and after the...
This guidance, from April 2017, was prepared by The Chartered Governance Institute ( CGI) after consultation and dialogue with a group of experienced minute-takers......
ARCHIVED This Practice Note has been archived and is no longer maintained. It offers an overview of the implementation and principal changes brought in by the EU Transparency Directive and the EU Transparency Directive Amending Directive in the UK. It reflects the law as at February 2019 and has not been revised to address the UK’s withdrawal from the EU. It also briefly outlines Directive 2004/109/ EC of the European Parliament (15 December 2004) on the harmonisation of transparency obligations concerning information about issuers whose securities are admitted to trading on a regulated market, and its amendment of Directive 2001/34/ EC (the Transparency Directive), together with its background, substance and UK implementation. History and implementation The Transparency Directive emerged from the European Commission’s broader Financial Services Action Plan ( FSAP), a programme designed to establish the legislative foundations for a single EU market in...
Scope of this Practice Note This Practice Note examines the UK regulatory considerations encountered by crowdfunding platforms from a financial services standpoint. It ought to be read in conjunction with the Financial Services and Markets Act 2000 ( FSMA 2000), together with relevant secondary legislation, and regulatory rules and guidance, including, in particular, provisions within the Financial Conduct Authority ( FCA) Handbook and the FCA’s webpage devoted to crowdfunding. This Note briefly outlines initiatives at EU level in relation to regulating crowdfunding, which are discussed in detail in Practice Note EU Regulation of crowdfunding—the ECSP Regulation and the Mi FID II Crowdfunding Directive. Crowdfunding (sometimes referred to as 'crowd sourcing' or 'crowd financing') operates on the basis that individuals seeking capital, such as entrepreneurs, present ventures or businesses on an online platform, and members of the public contribute funds through that platform. There is no...
Introduction An initial public offering ( IPO) is a company’s first sale of shares to the public. For more on what an IPO entails, see: IPO— Main market—overview. A business heading towards an IPO must assess the effect on any employee share arrangements it runs. This analysis should begin at the earliest planning stage, as the IPO structure may need to reflect share plan considerations. An IPO also creates a chance to launch new share schemes—often extending participation to all staff for the first time—and it is usually best for those arrangements to be established before the company’s shares are officially admitted to trading. Organisations may likewise wish to make awards or run an employee offer at the point of listing. Doing so demands advance preparation, with suitable disclosures built into the prospectus. This Practice Note outlines the key points that typically arise on...
Sentencing The Sentencing Council has issued offence‑specific sentencing guidelines (the Guidelines) for application in magistrates’ courts and Crown Courts in England and Wales covering unauthorised or harmful waste deposit, treatment or disposal, and unlawful releases to air, water and land, contrary to section 33 of the Environmental Protection Act 1990 ( EPA 1990) and regulations 12 and 38(1)–(3) of the Environmental Permitting ( England and Wales) Regulations 2016, SI 2016/1154 ( EPR 2016). They also note the now‑revoked Environmental Permitting ( England and Wales) Regulations 2010 ( EPR 2010), SI 2010/675, which were superseded by EPR 2016. The Guidelines have effect from 1 July 2014, irrespective of the date of the offence. They do not apply in Scotland or Northern Ireland, though sentencers in those jurisdictions may consult them when determining sentence. For guidance on the investigation, prosecution and sentencing of...
ARCHIVED: This Practice Note is archived and no longer maintained. It offers contextual guidance on the main types and doctrines of EU law and legislation, and considers how Brexit affects EU-derived law and legislation in the UK, as background reading. For more detail on this topic, see the Practice Notes: Brexit—key legislation explained and Retained EU law and assimilated law. For broader Brexit materials, see: Brexit collection. This Practice Note is not maintained. Effect of Brexit on EU law in the UK The UK ended its EU membership at 11 pm on 31 January 2020 (exit day). From that moment, directly applicable EU law no longer applied to the UK under the EU Treaties, and the UK was no longer bound by duties under those treaties, which oblige Member States to ensure their domestic legislation complies with obligations set out in EU laws. EU law itself, and its...
ARCHIVED: This Practice Note is archived and is not maintained. In each section of this Practice Note, links are provided to the relevant provisions of EU and/or UK legislation, as applicable, and any significant divergence between the relevant EU and UK legislation is clearly identified. EU Market Abuse Regulation—background and purpose The Market Abuse Regulation (the EU Market Abuse Regulation) annulled and superseded the former Market Abuse Directive ( Directive 2003/6/ EC) ( OJ L 96/16) ( MAD) and its implementing legislation on 3 July 2016. The EU Market Abuse Regulation established a refreshed and bolstered EU market abuse framework, introducing a broader scope and more stringent sanctions. Outside of the UK, the Market Abuse Regulation was supplemented by Directive 2014/57/ EU on criminal sanctions for market abuse ( CSMAD). The UK used its powers to opt out of CSMAD, as it already has an...
ARCHIVED: This content was issued in 2016 and is no longer being updated. STOP PRESS: A major overhaul of the UK listing framework took effect on 29 July 2024, featuring the scrapping of the premium and standard listing segments and the introduction of a single listing category for equity shares of commercial companies. The commercial companies category is strongly disclosure-led and sits alongside other listing categories, including those for shell companies, secondary listing and closed ended investment funds. A new UK Listing Rules sourcebook took effect to deliver these reforms, and the earlier Listing Rules sourcebook was withdrawn. For more details and guidance, consult Practice Note: Reform of the UK listing regime—fundamentals......
Structure This Practice Note proceeds on the basis that the funder supplies finance only to the JV (ie a cash loan to be repaid with interest). If, however, the funder wishes to join the JV as a participant, see Practice Note: Property development joint ventures—acting for an investor, which considers a funder’s position when investing. Likewise, where the funder is to forward fund the scheme (often called a ‘forward funding’ or ‘forward sale’), it would typically purchase the property itself and grant the developer a licence to undertake the works. In substance, that is an investment by the funder, with returns realised through lettings or other disposals of the finished scheme. Strictly, it is not a joint venture and may instead be documented contractually via a forward funding agreement or forward sale contract. For more detail, see Precedents: Forward funding agreement and Forward funding...
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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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