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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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Rent Rent is the amount payable by a tenant to the landlord for occupying or using the premises. The rent figure must be capable of being worked out from the lease; it need not be fixed for the whole term, but the starting rent must be identified together with a method—typically a rent review clause—to determine later rents. Rent is usually expressed as exclusive of VAT, payable without deduction and without the need for demand. See Practice Note: Rent and rent review in commercial leases in Scotland. Commercial rent is ordinarily paid in advance by equal instalments on the quarter days, namely: 28 February, May, August and November or, where English parties prefer, 25 December, 25 March, 24 June and 29 September Monthly payment is increasingly common. Where rent is payable quarterly in advance, the entire instalment falls due on the quarter day. This can be...
Although every litigation funding agreement ( LFA) and its related papers will differ based on the funder and the nuances of the case being backed, there are core matters that must be tackled during the stages of negotiation. This Practice Note forms part of a concise series by Tanya Lansky and Tets Ishikawa, Managing Directors of Lion Fish Group Ltd, designed to give those negotiating or evaluating LFAs and their accompanying documents a clearer grasp of the considerations involved and the factors at play... Priorities agreements A priorities agreement (often also called the waterfall) is the instrument that expressly determines the order in which the returns from the funded claim are distributed if the case succeeds. Though it only bites upon a positive result, differing models adopted by funders and bargained for by funded parties over time have created fertile ground for...
Scope of this Practice Note This Practice Note sets out a collection of worked illustrations for drafting pleadings in a straightforward contractual debt setting, namely: the particulars of claim defence a reply grounded on a hypothetical simple contractual debt claim to which the Late Payment of Commercial Debts ( Interest) Act 1998 applies For guidance on debt claims, refer to the following Practice Notes, together with the associated Checklists and Flowchart: Debt claims Discharging a contractual debt Starting a contractual debt claim—a practical guide Starting a contractual debt claim—checklist Responding to a contractual debt claim—checklist Starting proceedings under the Pre- Action Protocol for Debt Claims—flowchart The worked examples below are not drafted as Precedents. They are illustrative only, do not attempt to capture every conceivable claim or defence that could be raised on the assumed facts, and are not presented as ‘the perfect pleading’......
E& W Brussels I (recast)—when is a court seised? (art 32) [ Archived] ARCHIVED: This Practice Note is archived and is no longer maintained. It examines the point at which a court becomes seised of proceedings under Article 32 of Regulation ( EU) 1215/2012, Brussels I (recast). Identifying the court first seised is fundamental to the operation of Articles 29–31 of Regulation ( EU) 1215/2012, Brussels I (recast), which address the prevention and regulation of concurrent proceedings. For details of the equivalent provisions in Regulation ( EC) 44/2001, Brussels I, see Practice Note: Brussels I—when is a court seised? (art 30) [ Archived]. Impact of UK’s departure from the EU Following exit day (ie 31 January 2020), the UK became a third state for the purposes of Regulation ( EU) 1215/2012, Brussels I (recast). Under the transitional arrangements in the Withdrawal Agreement between the UK and the EU, the UK...
This Practice Note outlines when a contract may be treated as void and the consequences that follow. It differentiates void, voidable and unenforceable agreements, and explores voidness arising from: common mistake, a unilateral mistake as to contractual terms where the other party is aware, mistaken identity, non est factum, and statutory avoidance, while also recognising illegality as a distinct category. For a tabular overview of illustrative judgments on contract law since 1 January 2020, see Practice Notes: Contract disputes—illustrative decisions (2026) Contract disputes—illustrative decisions (2024–2025) [ Archived] Contract disputes—key and illustrative decisions (2020–2023) [ Archived] When is a contract a void contract? A void contract is one with no legal effect whatsoever. A contract will be void where: the parties have contracted under a fundamental common mistake one party agrees on mistaken terms and the other party knows of that...
This Practice Note sets out the particular rules governing VAT on costs that fall to be the subject of either summary or detailed assessment before the High Court. The applicable provisions are contained in CPR PD 44. Entitlement to This is addressed at CPR PD 44, para 2.3 through to CPR PD 44, para 2.6. The party seeking recovery of costs bears responsibility for ensuring that VAT is claimed only if, and only to the extent that, it cannot recover from HMRC the VAT it has incurred ( CPR PD 44, para 2.4). if the VAT is recoverable from HMRC, it should not be included in a claim for costs if only a proportion of the VAT is recoverable from HMRC, include only that proportion which is not recoverable from HMRC in the claim for costs The legal adviser’s VAT registration number must appear in a...
ARCHIVED : This Practice Note is archived and no longer updated. It illustrates the CPR 36 provisions on varying Part 36 offers following the April 2015 re‑writing of CPR 36. It forms part of a series of Practice Notes prepared for the joint Lexis Nexis and St Philips Commercial series of seminars on the revisions to Part 36, held in Leeds, Birmingham and London in January 2015. To access all the materials and the recorded version of the April 2015 London Part 36 event, please visit our Lexis Nexis Dispute Resolution blog and sign‑up. For other Practice Notes in this series on the revised CPR 36, see our related content links on the right hand side. What happens when a Part 36 offer is altered to render it more advantageous to the offeree? Under CPR 36.9(5), where a Part 36 offer is made more...
This Practice Note offers insight into how the relevant parts of the CPR should be read and applied. Depending on the forum in which your case is heard, you may have to take account of further provisions—see below. This Practice Note focuses on a distinct form of order called an ‘unless order’. The immediate effect of defaulting on an unless order is that a sanction takes effect (most commonly the striking out of a claim or defence), requiring an application for relief from sanctions—see: What are the consequences of breaching an unless order? This Practice Note should therefore be used alongside the following Practice Notes: Case management—compliance Strike out for failure to comply with a rule, practice direction or order ( CPR 3.4(2)(c)) Relief from sanctions—making or opposing an application Relief from sanctions—the courts’ approach What is an ‘unless order’? An ‘unless order’ is an order by which a...
Unlawful means conspiracy This Practice Note addresses the civil economic tort of unlawful means conspiracy and sets out its essential components: a collaborative arrangement or coordinated conduct, the deployment of unlawful means, awareness of that unlawfulness, a purpose to harm the claimant, an overt step taken to advance the agreement, and consequent loss... Combination or concerted action Use of unlawful means Knowledge of the unlawfulness Intention to injure the claimant An overt act in pursuance of the agreement Resulting damage For broader assistance on civil conspiracy (including the difference between lawful and unlawful means conspiracy), and on pleading and evidencing such allegations, see Practice Notes: Civil conspiracy claims (economic tort) Lawful means conspiracy (civil action) Unlawful means conspiracy is a civil cause of action—one of the economic torts—offering a potential remedy where a defendant’s conduct causes...
Practice Note: Unjust enrichment—elements of the claim As outlined in this Practice Note, unjust enrichment claims usually turn on four matters: the defendant has been enriched the enrichment was obtained at the claimant’s expense an ‘unjust factor’ makes it improper for the defendant to keep that enrichment the defendant may have a particular defence Such claims are intensely fact-sensitive. This Practice Note sets out examples of the courts’ approach in practice and demonstrates the wide spectrum of situations in which unjust enrichment may arise. Case details DMA Resources Ltd v Brazilian Nickel Ltd [2026] EWHC 833 ( Ch) — 21 April 2026 Brief outline of facts: An investment introducer claimed commission after allegedly reintroducing Resource Capital Funds ( RCF) to the defendant, which led to RCF investing in the defendant’s mining project. Nature of defendant’s...
ARCHIVED: This Practice Note is archived and is no longer maintained. This Practice Note examines the particular questions that can emerge when the parties are bound by a contract yet a potential claim in unjust enrichment might also be in play. In that situation, scope for pursuing unjust enrichment in the presence of an ongoing contractual arrangement is narrow, as outlined below. In addition, any party must still meet the general prerequisites for bringing an unjust enrichment claim as set out in Practice Note: Unjust enrichment—elements of the claim, and remain alert to any defences that could be advanced, as discussed in Practice Note: Unjust enrichment—defences. The relationship between unjust enrichment and contracts Claims seeking restitution for unjust enrichment are separate and different from actions in contract. The general rule is that, where a claimant and a defendant are linked by a...
Class actions— USA— Q& A guide This Practice Note presents a jurisdiction-specific Q& A on class actions in the USA, featured in the Lexology Getting the Deal Through series by Law Business Research (law stated at: 9 October 2022). Authors: Cleary Gottlieb Steen & Hamilton LLP— Roger A Cooper; Lina Bensman; Allison Kim. 1. Outline the organisation of your court system as it relates to collective or representative actions (class actions). In which courts may class actions be brought? The American court structure comprises two parallel systems: the federal courts and the state court systems. The federal judiciary operates on three tiers: Trial courts, termed the ‘ US District Courts’, located nationwide; Thirteen intermediate appellate courts, the ‘ US Courts of Appeals’; The highest court, the ‘ US Supreme Court’. The Supreme Court has jurisdiction over all matters brought in federal courts, and over cases from state courts that involve...
This Practice Note reviews the principal procedural features of pursuing a section 994 unfair prejudice claim (formerly a section 459 petition), including funding, limitation, a sketch of the process and costs considerations, as well as some general practical points. For an introduction to unfair prejudice petitions and examples of the varied factual situations and legal questions that can arise, see the following Practice Notes: Unfair prejudice claim—what is it and when to use it Unfair prejudice claims—illustrative decisions Unfair prejudice claims—key and illustrative decisions [ Archived] Depending on the court in which your case is brought, you may also need to account for additional provisions—see below. Funding the litigation The company’s funds should not be deployed to bankroll litigation under section 994 of the Companies Act 2006 ( CA 2006) without the unanimous consent of shareholders ( Koza Ltd v Koza Altin...
This Practice Note looks at circumstances in which the conduct of a trial can render it unfair at common law, concentrating on judicial behaviour and procedural irregularity in particular. Claims that a trial was unfair are commonly pursued on appeal on the footing that the outcome is unjust due to a serious procedural or other irregularity in the lower court proceedings under CPR 52.21(3)(b). For further material on appeals, see: Civil appeals: general and preliminary considerations—overview and Practice Note: Grounds for appealing and preliminary considerations. This Practice Note does not address the notion of a fair hearing under Article 6 of the European Convention on Human Rights (the ‘ ECHR’). The common law rules sit alongside, yet continue to operate independently of, Article 6 of the ECHR. For guidance on that topic, see Practice Note: Article 6— Right to a fair...
This Practice Note considers undertakings in the context of interim injunctions This Practice Note explores undertakings within the setting of interim injunctions. For guidance on undertakings given other than in that context, see: Undertakings—overview concerning solicitors’ undertakings Practice Note: Undertakings (covenants) for contractual undertakings in a banking context Practice Note: Enforcement of undertakings which concerns enforcement of undertakings in a family law context Bankruptcy restrictions orders and undertakings—overview for bankruptcy undertakings It addresses interpretation and practical use of the relevant provisions of the CPR. Depending on the court seised of your case, additional requirements may apply—see the court specific guidance below. For general material on interim injunctions, consult: Interim injunctions—the American Cyanamid guidelines Interim injunctions—on notice applications Interim injunctions—without notice applications Interim injunctions—drafting the order Unless otherwise indicated, the authorities and issues discussed chiefly concern...
This ‘how to’ guide on understanding the civil litigation risk of ESG (environmental, social, and governance) sets out and distils the following topics: what ESG encompasses? the meaning of ESG-related civil litigation risk? potential claimants in civil ESG actions? prospective defendants exposed to civil ESG claims? ESG and how solicitors are involved sources of further guidance and support You may find it helpful to read this alongside Practice Note: ESG for in-house lawyers—the basics. The Law Society has issued guidance, relevant to both in-house and private practice solicitors, to support advisers to companies on climate risk governance and greenwashing threats—see: LNB News 25/10/2023 51— Law Society publishes guide to climate risk governance and greenwashing risks and further below. It should be read in tandem with Practice Note: ESG for in-house lawyers—the basics, as referenced above too. For key News Analyses on...
ARCHIVED: This archived Practice Note sets out details of the Data Protection, Privacy and Electronic Communications ( Amendments etc) ( EU Exit) Regulations 2019, SI 2019/419, together with the Data Protection, Privacy and Electronic Communications ( Amendments etc) ( EU Exit) Regulations 2020, SI 2020/1586, plus salient elements of the EU- UK Withdrawal Agreement and the EU- UK Trade and Cooperation Agreement insofar as they concern data protection. It is no longer updated and is provided for background only. For guidance on continuing divergence between data protection requirements under the GDPR frameworks, refer to Practice Note: Introduction to the EU GDPR and UK GDPR. This Practice Note examines how Brexit affects routine processing of personal data under the General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR), which took direct effect in the UK and all other EU Member States on 25 May 2018, and,...
ARCHIVED This Practice Note is archived and no longer maintained. This Practice Note reviews the evidence-taking rules as they apply between the UK’s departure from the EU on 31 January 2020 and the end of the implementation period, which the EU refers to as the transition period. It explores whether the implementation period can be extended, assesses the application of the evidence-taking regime under Regulation ( EC) 1206/2001—the Taking of Evidence Regulation—during that period, and outlines the position beyond the implementation period. Definitions This Practice Note uses the following definitions: European Union ( Withdrawal) Act 2018— EU( W) A 2018 European Union ( Withdrawal Agreement) Act 2020— EU( WA) A 2020 exit day—is defined in EU( W) A 2018, s 20 implementation period—is defined in EU( WA) A 2020, s 1......
This Practice Note sets out how trade secrets and confidential information are protected in a commercial context, particularly where technical material is concerned. It outlines the Trade Secrets ( Enforcement, etc) Regulations 2018 ( Trade Secrets Regulations), SI 2018/597, and their interaction with the common law action for breach of confidence. This Practice Note also addresses: how breach of confidence intersects with infringement of intellectual property rights and other causes of action the meanings of ‘confidential information’, ‘trade secrets’ and ‘know‑how’, and how these concepts are handled in commercial practice case law on secondary liability, common design and knowledge of breach, together with the position on subconscious use, derivative use and reverse engineering remedies available for breach of confidence, including injunctions, springboard injunctions, damages, account of profits, delivery up and...
Appeals before 2 December 2024 This Practice Note governs appeals to the Supreme Court in which either an application for permission to appeal, or a notice of appeal, was lodged on or after 2 December 2024, being the date on which the SCR formally came into force ( SCR 1). The SCR 2009 (described in this Practice Note as the ‘old SCR’) are revoked on that day ( SCR 62(2)). However, the old SCR will continue to apply to the following matters: appeals already underway before 2 December 2024 rule 11 permission applications under the old SCR (filing of application for permission to appeal) lodged before 2 December 2024, and rule 19 notices of appeal under the old SCR (filing of notice where permission not required) lodged before 2 December 2024 ( SCR...
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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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