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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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The Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023) received Royal Assent on 29 June 2023. Although less expansive than the initial proposal to disapply all retained EU law ( REUL) by the end of 2023, it nonetheless delivers notable changes. This Practice Note outlines the impact of REUL( RR) A 2023, the reforms it introduces and the interpretation of assimilated law, the role of the courts, and how REUL( RR) A 2023 interfaces with the Withdrawal Agreement and the Trade and Co-operation Agreement ( TCA) with the EU... The European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) To understand the operation of REUL( RR) A 2023, one must return to the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018). For background on EU( W) A 2018, see Practice Note:...
This Practice Note examines retention and rescission in Scotland. For guidance on: other forms of relief in Scottish civil litigation, see Practice Notes: Interdict and interim interdict in Scottish civil litigation, and Specific implement and interim specific implement in Scottish civil litigation key aspects of Scottish civil litigation, see: Scottish DR: prescription and limitation—overview; Scottish DR: case management and evidence—overview; Scottish DR: civil appeals and judicial review—overview; Scottish DR: enforcement—overview; and Scottish DR: settlement and ADR—overview, which in turn link to detailed guidance on specific elements of dispute resolution in Scotland other key areas of Scottish law and procedure, see our Scotland collection the closest equivalent in England and Wales, see: Contractual breach damages and remedies—overview which, as well as an overview, links to further detailed guidance on remedies for breach of contract in England and Wales, including Practice Note:...
Retained EU Law ( Revocation and Reform) Act 2023 The Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023) overhauls the framework set by the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018). It has a marked effect on the status and treatment of what had been retained EU law ( REUL); from 1 January 2024, by virtue of the Act, this is recognised as assimilated law. The legislation also confers a broad set of powers enabling the further amendment, repeal, and substitution of assimilated law over time. REUL( RR) A 2023 came into force in part on 29 June 2023, with additional provisions taking effect on 29 August 2023, and the remaining elements commencing on appointment. It was brought into force on 1 January 2024, save for section 6 ( Role of courts). For...
This Practice Note refers to: the Companies Act 2006 ( CA 2006) the Insolvency Act 1986 ( IA 1986) What is a restructuring plan? A restructuring plan ( RP) is a court-approved settlement between a company and its creditors and/or members. It was created as a fresh rescue mechanism by the Corporate Insolvency and Governance Act 2020 ( CIGA 2020). Under CIGA 2020, s 7 and Sch 9, CA 2006, Pt 26A— Arrangements and Reconstructions for Companies in Financial Difficulty—was introduced. RPs have much in common with schemes of arrangement under CA 2006, Pt 26. A key differentiator, however, is the cross class cram down ( CCCD), allowing a class of creditors or members to be bound by the plan even without a favourable vote from that class, where specified tests are met. For insights into metrics from RPs reviewed by the courts in 2024,...
This Practice Note reviews the provisions of the Protection of Trading Interests Act 1980 ( PTIA 1980) that limit the enforcement of certain foreign judgments. Those provisions operate as an exception to the doctrine of obligation or comity, under which the courts of England and Wales would ordinarily recognise a competent foreign court’s decision imposing a liability on a defendant to pay the adjudged sum. Background to the act The PTIA 1980 was prompted by UK opposition to the US approach to anti-trust enforcement, where courts may award multiple damages. When introducing the legislation, the Secretary of State for Trade stated that it was ‘to reassert and reinforce the defences of the UK against attempts by other countries to enforce their economic and commercial policies unilaterally on us’. Remit of the act As to scope, the act applies to any judgment delivered by an overseas court that...
This Practice Note considers how to respond to a letter of claim of misuse of private information (a privacy claim). It covers: Early checks on receipt of a claim letter: whether a tenable claim exists, any available defences, and CPR compliance Any jurisdictional questions that could necessitate input from foreign lawyers Immediate actions: readiness for any interim injunction, steps to avert further alleged harm, and gathering and preserving documents Points to weigh before issuing a response The content and form of the letter of response Making a prompt offer to settle Settlement and alternative dispute resolution ( ADR) in general Initial case management considerations For guidance when advising your client on bringing a privacy claim, see Practice Note: Starting a claim for misuse of private information—a practical guide. For general guidance on replying to a letter of claim, see...
This Practice Note offers a concise overview of the points to bear in mind once you receive a letter of claim and must provide a response. For fuller detail, together with links to underlying materials, see Practice Note: Responding to a letter of claim—a practical guide. For high-level advice on preparing a letter of claim, see Practice Note: How to prepare a letter of claim. Initial considerations Read the letter carefully to gauge whether the other party appears to have a valid claim—can you swiftly evaluate their legal reasoning and whether you may have a potential defence (for example, might they be outside a relevant limitation period)? Identify the remedies sought—for instance, if an interim injunction (or any other form of urgent interim relief) is threatened, you will need to act more quickly. The likely value of the alleged claim will usually shape what...
This Practice Note sets out the aim of a reserved judgment and the constraints attached to receipt of a draft judgment. It also covers what a party ought to do upon receipt of a draft judgment and the limited situations in which it might be possible to prevent a draft judgment being handed down altogether. What is a reserved judgment? A court may reserve judgment by postponing delivery of its reasons for the decision to a later date in writing, rather than pronouncing judgment orally immediately after the hearing or trial ends. At the close of the hearing the judge will usually confirm that judgment is reserved and will later circulate a draft written judgment to the parties. The practice started in the Court of Appeal and was extended to the High Court. Where judgment is to be reserved, the judge may, at 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...
This Practice Note reviews repairing duties in Scottish commercial leases, covering how such obligations are interpreted, extraordinary repairs, interim dilapidations, remedies for breach by landlord or tenant, the scope of duties, and payment obligations for repairs at lease termination. For the principal judicial and non-judicial remedies in Scottish landlord and tenant disputes generally, see Practice Note: Remedies in landlord and tenant disputes— Scotland. Interpreting repair obligations in commercial leases A lease’s repairing clause allocates the respective responsibilities of landlord and tenant for the let subjects and any shared parts of the property of which they form part. In practice, parties and their solicitors negotiate how repair risk is divided, and unambiguous drafting is required to shift responsibility from landlord to tenant. Care is also needed in defining the let subjects and the extent of common parts so that liability is aligned...
Note: Except where a notice of appeal was lodged, or permission to appeal was granted, before 1 October 2012, this Practice Note is retained solely for historical reference. For up-to-date guidance on permission to appeal, consult Practice Note: Grounds for appealing and preliminary considerations— Is it possible to re-open an appeal (including an application for permission to appeal)? In addition, the CPR and the practice directions cited here link to the current provisions and not those in force before 1 October 2012. For the pre- October 2012 position, refer to the attached PDF documents. Principles The Court of Appeal or the High Court may re-open a final determination of an appeal only in three situations: where doing so is required to prevent genuine injustice the circumstances are out of the ordinary and justify such a course there is no other...
ARCHIVED: THIS PRACTICE NOTE IS BASED ON CPR PROVISIONS REVOKED ON 1 APRIL 2013. This material is retained purely for historical reference. For insight into the present, post- Denton, position, please consult the following Practice Notes: Compliance and relief from sanctions—overview Case management—compliance Agreements to extend time under CPR 3.8(4) (buffer agreements) Relief from sanctions—the courts’ approach Relief from sanctions—illustrative decisions [ Archived] Relief from sanctions—when is an application for relief required?......
ARCHIVED: this archived Practice Note is not maintained and is for background information purposes only. Please note, some hyperlinks may no longer lead to the provisions as they stood at the time this Practice Note was issued. Important: this Practice Note addresses the application and construction of CPR 3.9 after Mitchell but before Denton; Decadent and Utilise ( Denton v White & others; Decadent Vapours Limited v Bevan & others; Utilise TDS Limited v Cranstoun Davies & others [2014] EWCA Civ 906; [2014] All ER ( D) 53 ( July) (not reported by Lexis Nexis®)). The Court of Appeal expressed the expectation that Denton would render recourse to earlier authorities unnecessary. Consequently, the material here is primarily of historical interest. For up-to-date, post- Denton guidance, see: Practice Notes: Compliance and relief from...
ARCHIVED: This archived Practice Note is no longer updated and serves solely as background information. In addition, certain links may not take you to the provisions as they stood when the guidance in this Practice Note was issued. IMPORTANT NOTE: this Practice Note addresses how CPR 3.9 should be applied and construed after Mitchell yet before Denton; Decadent and Utilise ( Denton v White & others; Decadent Vapours Limited v Bevan & others; Utilise TDS Limited v Cranstoun Davies & others [2014] EWCA Civ 906, [2014] All ER ( D) 53 ( July) (not reported by Lexis Nexis®). The Court of Appeal has indicated it hopes that the Denton ruling will obviate any need to look back to prior authorities. Accordingly, the guidance in this Practice Note is predominantly of historical interest only at this time......
This Practice Note gathers a selection of illustrative rulings to explain how the courts are likely to approach an application for relief from sanctions. It differentiates decisions where relief was granted from those where it was refused, highlighting the key facts and the result in each instance. This Practice Note includes relevant authorities from 1 January 2024 onwards. For illustrative decisions relating to periods before 1 January 2024, see Practice Note: Relief from sanctions—illustrative decisions [ Archived]. For guidance on when relief must be sought and on making or resisting an application, see Practice Notes: Relief from sanctions—when is an application for relief required? and Relief from sanctions—making or opposing an application. For more detailed guidance on the court’s approach to relief from sanctions, see Practice Note: Relief from sanctions—the courts’ approach. Collectively, these notes illuminate the courts’ handling of...
This Practice Note serves as a negotiating aid for dispute resolution solicitors engaged in agreeing and drafting settlement agreements after a dispute has been resolved by negotiation, regardless of whether court proceedings were issued beforehand. Its focus is the release clause which, alongside the payment clause, typically forms one of the agreement’s two core components. It outlines the likely stances parties will take when settling the terms of the release, and proposes possible middle-ground solutions they might accept. The Note offers a high-level overview of the topics, helping readers assess what will be required in a given matter. It also signposts further Practice Notes and Precedents for those needing additional reference material. These should be consulted where further guidance is required. It is not designed for use in negotiating settlements of employment contract disputes, where distinct...
ARCHIVED : This archived Practice Note summarises a number of key and/or illustrative cases relevant to reflective loss. It is not maintained and is for background information only. For guidance on the background to and principle underpinning this rule, as well as details of the key practical issues that it is sensible to have in mind should you have a case in which the rule might be relevant, see Practice Note: Reflective loss. Case details and analysis Court of Appeal Burnford v Automobile Association Developments Ltd [2022] EWCA Civ 1943 News Analysis: Right to strike out a claim because reflective loss is not recoverable ( Burnford v Automobile Association Developments Ltd) 14 November 2022 This appeal considered whether the judge had correctly decided—by the judgment of 28 February 2022, referenced below—to strike out a claim by former...
This Practice Note examines damages for breach of contract where the remedy sought comprises wasted expenditure, diverted management time and litigation costs arising from the breach. These are a form of pecuniary loss. For a broader overview of contractual damages, see Practice Note: Contractual damages—general principles; which sets out Baron Parke’s dicta in Robinson v Harman on the compensatory purpose of damages for breach, namely that an innocent party is entitled to be put, as to money, in the position they would have occupied had the contract been fulfilled, as if the agreement had been performed. For focused guidance on recovering losses for breach of contract, see the following Practice Notes set out below: Contractual damages—pecuniary losses (expectation, reliance or gain-based financial losses) Contractual damages—non-pecuniary losses (non-financial losses) Be aware that contracts frequently attempt to limit or exclude categories of loss recoverable in any given case for...
ARCHIVED: This archived Practice Note explores the crucial question of enforcing SICC judgments. It reviews the effect of, and interaction between, the following instruments: Hague Convention on the Choice of Court Agreements (2005 Hague Convention) Singapore Choice of Court Agreements Act 2016 ( CCAA 2016) Reciprocal Enforcement of Commonwealth Judgments Act ( Cap 264) ( RECJA) Reciprocal Enforcement of Foreign Judgments Act ( Cap 265) ( REFJA) It is not maintained and is supplied for background only. All references are to Singapore rules and legislation, with links provided in the Related documents section - external links - and in Our Lawyer Team Recommends. A major reason arbitration remains popular is the relative simplicity of cross-border enforcement afforded by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 ( New York Convention)....
ARCHIVED : This Practice Note is archived and is no longer maintained. Regulation ( EU) No 1215/2012, the recast Brussels I, brought significant alterations to how judgments from other EU Member States are enforced in England under the new framework. These reforms shift the onus for having a judgment from one EU Member State, the State of Origin, acknowledged or enforced in another, the State of Enforcement, away from the party seeking recognition or enforcement there. Instead, the responsibility now lies with the party opposing recognition or enforcement to demonstrate one of the narrow refusal grounds. At the heart of these updates is removing the need to obtain a declaration of enforceability. Under Regulation ( EC) 44/2001, Brussels I, a party seeking to enforce a judgment from elsewhere in the EU had to obtain a declaration in the State of...
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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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