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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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As of 31 January 2020, the UK left the EU and the EEA. This Practice Note introduces: the General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR) framework (which applied within UK law up to the end of the Brexit implementation period—11 pm UK time on 31 December 2020—and continues to operate across the EEA; therefore, any references in this Practice Note to EEA or EU states should be read as also covering the UK until that period concluded) the United Kingdom General Data Protection Regulation, Retained Regulation ( EU) 2016/679 ( UK GDPR) framework (which applies under UK law from the end of the Brexit implementation period) Where there is no need to draw a distinction, this Practice Note refers to both as ‘ GDPR’ for ease. When looking at the routine processing of personal data, the UK GDPR and the Data...
This Practice Note concerns tort-related matters only where the damaging incident fell between 1 May 1996 and 11 January 2009. If the harmful event lies outside that period, an alternative applicable law regime governs. For further assistance, refer to Practice Note: Applicable law—a guide for dispute resolution practitioners. Part III of the Private International Law ( Miscellaneous Provisions) Act 1995 ( PIL( MP) A 1995) appears in PIL( MP) A 1995, ss 9–15B. It has UK-wide effect and addresses the selection of the governing law in tort. In Scotland, the corresponding concept to tort is delict in equivalent terminology and usage......
ARCHIVED : This Practice Note has been archived and is not maintained This Practice Note reviews the rules for identifying the applicable law, also described as governing law, as they operate between the UK’s exit from the EU on 31 January 2020 and the conclusion of the implementation period, which the EU refers to as the transition period. It addresses whether the implementation period can be extended, whether the applicable law frameworks in Regulation ( EC) 593/2008, Rome I, and Regulation ( EC) 864/2007, Rome II, continue to apply during that period, and what is expected at its end. For a quick reference Brexit research aid answering key questions on Brexit and offering useful Brexit updates, research tips and resources, see: Brexit Bulletin—key updates, research tips and...
This guide sets out key principles for a witness when preparing a clear and credible witness statement that stands the best chance of not being weakened in cross‑examination. For this guidance, it is assumed the witness drafts their own statement, with input from the lawyer whose client is seeking the witness’s evidence to indicate the matters the statement should address. The purpose of a witness statement A witness statement, supplied to all other parties and the court well in advance of the start of a trial, usually serves as the evidence in chief that the witness would give if examined orally. It is therefore the written counterpart to the witness’s answers to non‑leading questions. This is a critical point for a witness to keep in mind throughout the drafting process. A witness statement is not: an exposition of the legal case or the defence to a claim that the...
ARCHIVED: NOTE: SAVE FOR WHERE A DEFENCE HAS BEEN RECEIVED BEFORE 1 APRIL 2013, THIS PRACTICE NOTE IS FOR HISTORICAL PURPOSES ONLY. For details on the position after 1 April 2013, see Practice Note: Case management—allocation—the different case management tracks. Changes since 1 April 2013 From 1 April 2013, allocation questionnaires were replaced by directions questionnaires where ‘a defence is received’ on or after that date. What remains uncertain is: whether ‘received’ means received by the court rather than by the other parties; and/or whether ‘a defence’ in multi-defendant cases brings the new rules into play if any defendant files on or after 1 April 2013, even where other defendants filed before then If you are now dealing with directions questionnaires instead of allocation questionnaires, see Practice Notes: Directions questionnaires and Case...
This Practice Note reviews the differing court (and court guide) requirements that apply when drafting and lodging Tomlin orders. For broader guidance on Tomlin orders, see Practice Note: Tomlin orders. For an example of a Tomlin order, see Precedent: Tomlin order. For guidance on compromise of claims, see: Settlement and settling disputes—overview. Varied court provisions for Tomlin orders As noted by Warby J in Zenith Logistics v Coury, practices are not uniform across courts regarding the sealing and/or approval of Tomlin orders that embody settlement terms. Zenith related to the Queen’s Bench Division (as it then was), and Warby J observed that, on the face of it, the approach of the Chancery Division differs from that of the Commercial Court when considering whether to inspect confidential agreements that parties intend to implement by a consent order in Tomlin form. The Commercial Court’s usual course appears to be to...
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...
This Practice Note outlines and contrasts how different courts handle the lodging of draft Tomlin orders and the approval of such orders by consent once a dispute in existing proceedings has been resolved and the parties seek a stay pending fulfilment of the agreed terms. It explains the required format of the document submitted to the court, the manner of filing, and the position after the court makes an order. It also draws the line between those courts (a minority) that scrutinise the parties’ agreed provisions for enforceability and the majority that will not examine that question but will ensure the order is cast in the correct form to permit a Tomlin order. Lastly, it considers what materials are retained on the court file once an order has been made. Guidance is given on the form to use, the route for...
This Practice Note outlines a standard method commonly adopted by funders when evaluating a matter and determining whether to back it. It also sets out the considerations that may need to be addressed when assessing the availability of finance. It is intended to guide both claimants and their advisers through key early steps in the process. Initial enquiry and NDA An initial, succinct scoping call with a funder, without revealing any confidential material, is useful to confirm that, at least in principle, nothing would stop that funder from properly reviewing the claim for support (eg any conflict of interest or other connection with parties to the prospective claim). Investment mandates differ from one funder to another and may, for example, vary in relation to: the minimum and maximum sums a funder can commit; the minimum ratio between the funder’s outlay and the...
This Practice sets out practical illustrations of how the Contracts ( Rights of Third Parties) Act 1999 ( C( RTP) A 1999) operates, addressing group liability and the defences to third party claims under C( RTP) A 1999. For wider guidance on the general operation of the Act, see Practice Note: Third party rights—the Contracts ( Rights of Third Parties) Act 1999. Rights and liabilities arising in contracts involving group structures For advice on construing contracts to assess whether benefits have been conferred on a third party for the purposes of C( RTP) A 1999, s 1(1)(b), see Practice Note: Third party rights—the Contracts ( Rights of Third Parties) Act 1999. A typical group supply arrangement might be structured as follows. Parent Supplier ( PS) agrees with Parent Customer ( PC) that: PS will provide raw materials to PC PS will also provide raw...
This Practice Note aims to help identify opportunities to use a Third Party Debt Order ( TPDO) to enforce a money judgment. For procedural guidance and answers to common queries, see the following Practice Notes: How to apply for a third party debt order ( TPDO) Third party debt orders—flowchart Third party debt orders—frequently asked questions Is a TPDO worth the effort? Once a money judgment has been obtained, if it is not paid the creditor can take enforcement steps. The choice of enforcement method rests entirely with the creditor (see CPR 70.2(2)). TPDOs are the least commonly used route. This is probably because the creditor must present the court with evidence of their knowledge or belief that a third party is indebted to the debtor ( CPR PD 72, para 1.2(7)), which can be difficult. Ministry of Justice...
This Practice Note explains how to make an application for a third party debt order ( TPDO). It outlines the appropriate court in which to apply, identifies the correct form to file ( Form N349), and emphasises the requirement for full and frank disclosure. It also covers when and what must be served after an interim TPDO is made, the evidence to be lodged ahead of the final hearing, and the court’s likely approach to that hearing. Note: With effect from 14 August 2023, the County Court Money Claims Centre ( CCMCC) and the County Court Business Centre ( CCBC) were renamed the Civil National Business Centre ( CNBC). This Practice Note supplies guidance on the steps to obtain a TPDO. For the overarching principles—such as which debts can be caught, the impact of a TPDO, and debtor hardship payments—see Practice Note: What is a third party debt...
This Practice Note examines the principles governing the tort whereby a defendant deliberately interferes with a claimant’s rights in a judgment debt. For wider guidance on enforcing judgments, see: Introduction to enforcement—overview and related content. What is the Marex tort? The Marex tort describes a tort-based cause of action premised on an alleged intentional infringement of the claimant’s rights in a judgment debt. Its contours were first confirmed by Bryan J in 2021 in Lakatamia v Su, having been raised by Knowles J in 2017 in Marex v Garcia (also known as Marex v Sevilleja). See: Marex tort—history below. In Lakatamia v Su, Lakatamia pursued two claims against the defendants, Mr Su and his mother, Madam Su, including: unlawful means conspiracy—alleging a concerted plan to harm Lakatamia by unlawful means, through breaches of a 2011 worldwide freezing order in related Commercial Court...
This Practice Note examines the court’s general case management power under CPR 3.1(7) to alter, modify or set aside a court order. It also addresses when the court may change a final order and gives practical guidance on making such applications. The court’s power to vary or revoke and order While parties to litigation must be able to depend on the court’s decisions, situations do arise where a party may seek to have an order adjusted, amended, revoked or corrected. The CPR contain a range of provisions for those scenarios, see the table and content links in: Judgments and orders—overview. One such route is CPR 3.1(7), within the court’s general case management powers, which provides that the power to make an order includes the power to vary or revoke it. This Practice Note sets out the principles applied under CPR 3.1(7) when altering or...
Scope of this Practice Note This Practice Note addresses preparing a contract termination notice for breach, together with, where suitable, a without prejudice offer letter to resolve any claim stemming from the termination. It pinpoints the principal issues to assess and explains, in detail, the context underpinning the drafting of each of our bespoke termination notice Precedents and the context behind them. It also considers multiple bases for terminating, and the choice between relying on an express contractual right to terminate or proceeding at common law for repudiatory breach when both avenues exist, ensuring your termination notice is valid and evaluating whether, if deemed appropriate, to enclose it with an offer to settle any liability arising from the breach. For guidance on using our related bespoke notice of breach Precedents, see Practice Note: Drafting notices of breach of...
This Practice Note examines defenders’ tenders in civil proceedings in Scotland. For guidance on: further aspects relating to judicial tenders in Scotland, see the Practice Notes: Making and responding to judicial tenders in Scottish civil litigation, and Tenders in multi-party Scottish civil litigation alternative, extra-judicial settlement routes in Scottish civil cases, see Practice Notes: Alternative dispute resolution in Scotland, Pursuers’ offers in Scottish civil proceedings, and Scotland civil disputes: negotiating and drafting a settlement agreement—checklist the nearest counterpart in civil proceedings in England and Wales, see Settlement and settling disputes—overview, which, as well as providing an overview of the topic, links through to more detailed guidance on settlement mechanisms in England and Wales, including Practice Notes: Settling disputes—settlement offers ( Calderbank, WPSAC and Part 36) and Without prejudice...
Costs management Note: The 152nd Practice Direction ( PD) update took effect on 1 December 2022; see 151st and 152nd Practice Direction updates—changes in force 16 November 2022 and 1 December 2022, LNB News 21/11/2022 54. This PD update formally renumbered CPR PD 3E (costs management) as CPR PD 3D to reflect the cross‑referencing amendments introduced by the Civil Procedure ( Amendment No 2) Rules 2022, SI 2022/783, and the 149th PD update. From 1 December 2022, the costs management PD is therefore CPR PD 3D. The Technology and Construction Guide still cites CPR PD 3E, but it should be read as CPR PD 3D until it is updated. This Practice Note examines costs management within the Technology and Construction Court ( TCC). Although many CPR provisions apply, it is also necessary to consider the Technology and Construction Court Guide, which may impose...
ARCHIVED: This Practice Note is archived and no longer updated. NOTE: the court has confirmed that the protocol for TCC E applications is no longer in operation. In this Practice Note, references to: TCC mean the Technology and Construction Court CLCC mean the Central London County Court CLCC TCC mean the TCC at the CLCC e-application mean electronic applications (ie applications by email) Protocol mean the Protocol for TCC E-applications list Note: this Practice Note applies only to claims progressing in the TCC CLCC. For general guidance on electronic working and electronic filing procedures, and for specific guidance on the Rolls Building e Working pilot scheme under CPR PD 51O, see Practice Notes: Electronic communication and filing of documents by email— CPR PD 5B and Electronic working and CE- File—when and where is CE- File applicable?...
This Practice Note This Practice Note examines how case management is conducted in the Technology and Construction Court ( TCC), by reference to the provisions of CPR 60, CPR PD 60, and the Technology and Construction Court Guide. As these materials supplement the general provisions found elsewhere in the CPR, it should be read together with wider guidance on case management, in particular: the court’s array of case management powers under CPR 3, and case management more generally—see Practice Note: Case management of civil claims under the CPR, and Case management—checklist multi-track case management—see Practice Notes: Multi-track—case management, and Multi-track—case management conference ( CMC) the significance and importance of complying with rules, practice directions and court orders, together with practical pointers to assist—see Practice Note: Case...
This Practice Note sets out guidance for preparing for a case management conference ( CMC) in the Technology and Construction Court ( TCC), covering when the CMC will be held, what documents should be assembled in advance, attending the CMC itself, and the steps that follow the hearing. Authoritative direction on these points in the TCC appears in CPR 60, CPR PD 60 and the Technology and Construction Court Guide. Because those provisions supplement the general CPR, this Practice Note should be read alongside broader multi-track CMC materials, including Practice Note: Multi-track—case management conference ( CMC) and Multi-track—case management—checklist. It should also be considered with Practice Note: TCC—case management, which addresses general case management matters in the TCC. TCC claims are treated as allocated to the multi-track, and CPR 26 does not apply to TCC proceedings ( CPR 60.6(1) and Technology and...
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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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