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This Practice Note outlines the law concerning criminal recklessness. The subjective test for recklessness Certain statutory and common law offences allow the prosecution to prove mens rea through ‘recklessness’. Put simply, recklessness is where the accused takes an unjustified risk that results in unlawful harm or damage. The House of Lords in R v G reaffirmed the subjective approach to recklessness. Before R v G, two distinct tests were used, depending on the offence charged: Subjective recklessness from R v Cunningham: the prosecution had to establish that the accused personally foresaw the risk. Objective recklessness from R v Caldwell: the prosecution only needed to show that the risk would have been obvious to a reasonable person, without proving the accused themselves foresaw it. In R v G, the House of Lords concluded that the objective test could operate unfairly where a defendant did not foresee the
This Practice Note examines the remedy of rescission, explaining when and in what manner a contract can be unwound (at common law, in equity and under statute) and thereby terminated and brought to an end. It covers the consequences and effects of rescission, the principal grounds for setting aside an agreement (misrepresentation, mistake, undue influence, duress, non‑disclosure, fiduciary misdealing and bribery) and the main obstacles to claiming rescission—affirmation, the intervention of third‑party rights and the impossibility of restitution. For further guidance on rescission in the context of misrepresentation, see Practice Note: Misrepresentation—rescission as a remedy. There are many ways in which a contract may reach its end; see: Terminating contracts—how and when a contract ends—overview for a brief and accessible summary, with links to the related further practical guidance, including Practice Note: Termination and expiry of contracts. For a table
What is a res judicata? A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal. Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice. in personam—binds the parties and their privies in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world) A party may rely on res judicata: as an estoppel to defeat an opponent’s claim or defence; and/or as the basis of their own claim or
The offence of causing grievous bodily harm with intent Wounding or causing grievous bodily harm (GBH) with intent can be tried solely in the Crown Court on indictment. Elements of the offence Under the Offences against the Person Act 1861 (OATPA 1861), the prosecution must establish that the defendant unlawfully and maliciously: wounded with the intention of causing GBH, or caused GBH with that intention, or wounded intending to resist or prevent the lawful arrest or detention of any person, or caused GBH intending to resist or prevent the lawful arrest or detention of any person ‘Unlawfully’ and ‘maliciously’ Unlawfully The wounding or causing of GBH must be unlawful. Such conduct may be lawful if used: in self-defence in defence of another in defence of property for the prevention of crime where the victim gave express or implied consent For further information on these defences, see below:
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This Practice Note explores the legal regime governing contempt proceedings under CPR 81 (often termed ‘committal proceedings’), emphasising their quasi-criminal character and the imperative of rigorous compliance with CPR 81. It also examines the necessity of bringing any contempt application for a proper purpose, together with the prospect of strike-out where the court considers the process to be abused... The legal framework of contempt proceedings CPR 81 regulates contempt proceedings. The iteration effective from 1 October 2020 was intentionally simplified to enhance clarity and usability. Given that streamlining, the courts are likely to respond more strictly to any departure from these rules than they may have under the earlier, more complex scheme... For a concise overview of significant recent judgments, see Practice Note: Civil contempt proceedings—illustrative decisions. As contempt applications can culminate in imprisonment or other draconian measures, including confiscation of assets, careful attention must be paid to...
ARCHIVED: This Practice Note is archived. It relates to provisions revoked on 1 April 2013 and is provided for historical reference only. Costs capping orders and protective costs orders Costs capping orders ( CCOs) and protective costs orders ( PCOs) both place limits on the amount of costs payable in proceedings. Nonetheless, they must be kept distinct: the court’s authority for each arises from wholly separate sources, and the function and purpose of the two orders differ markedly. Accordingly, they serve different ends within the costs regime. The general rule dealing with CCOs is now contained in r 44.18. In brief: CCOs cap the level of costs that a party may recover pursuant to a costs order that is subsequently made PCOs restrict the level of costs that an unsuccessful party will be required to pay in the...
Archived notice: This Practice Note is retained for historical reference only. It summarises the procedure that applied before 6 April 2016 for obtaining a charging order, both on an interim and on a final basis. It also describes the registration of interim and final charges before enforcement by way of an order for sale. For guidance on the procedure in force from 6 April 2016, together with the transitional provisions, see Practice Note: Charging orders—what are they and when to use them— CPR 73 and related material. What is a charging order for—pre 6 April 2016? As outlined in, and as seen in, our archived Practice Note: Pre-6 April 2016—charging orders—what are they and when to use them, a charging order fixes the debt against the debtor’s asset and safeguards it until such time as an order for sale of the asset can be...
This Practice Note examines the need for a false statement of fact to ground an actionable misrepresentation. For the other essential components of a misrepresentation claim, see the following Practice Notes: Misrepresentation—what is inducement? Misrepresentation—falsity (fraudulent, innocent or negligent misrepresentation) For guidance on the closely related cause of action in deceit, see Practice Note: The tort of deceit. Key elements of an actionable misrepresentation the representee relied upon a factual assertion made to them by the representor or someone acting on their behalf the representor intended that statement to encourage the representee to enter the contract the statement did in fact induce the representee to contract the statement had the status of a representation the representation was untrue Where damages are sought (whether in addition to, or instead of, rescission), the representee must also show that the...
Key evidence and disclosure decisions 2016—what do you need to know? ARCHIVED: This Practice Note is no longer maintained and is provided for background only. In addition, some links may not take you to the provisions as they were at the time this guidance was issued. In 2016 there were, among other matters, developments relating to: predictive coding—see below disclosure of confidential information—see below without prejudice communications—see below the court’s duty to scrutinise evidence—see below privilege—see below use of interim witness statements at trial—see below concurrent expert evidence—see below Predictive coding In Pyrrho Investments v MWB Property, the court endorsed, for the first time, the use of predictive coding technology during disclosure. It highlighted the advantages of the approach and set out considerations for deciding whether the software is appropriate in a particular case. Soon after, the Chancery Division in David Brown v BCA...
This Practice Note outlines what charging orders are, which categories of judgment debt can be made subject to a charging order, and the kinds of property that may be charged. It also offers guidance on construing and applying the relevant CPR provisions. Depending on the court in which your case is progressing, you may need to consider additional rules—see the section: Court specific guidance below. What is a charging order? A charging order is an indirect enforcement tool that secures a judgment debt by imposing a charge over property owned by the judgment debtor. The liability may be met later by applying for an order for sale of the charged asset—see Practice Note: Order for sale—how to enforce a charging order. The framework for charging orders is contained in CPR 73 and CPR PD 73, with reference to the Charging Orders Act 1979 ( COA 1979)....
This Practice Note considers the concepts of confidentiality and without prejudice protection in the context of a mediation. The confidential character of mediation is a core element of the procedure, curbing the parties’ ability to disclose material connected to the mediation beyond the process unless everyone agrees. Mediation contracts commonly include a term dealing with confidentiality. For further information, see: Confidentiality of the mediation process. Exchanges that occur within a mediation are also ordinarily covered by the ‘without prejudice’ rule. This principle means that communications made in the course of genuine settlement discussions are not to be cited or relied upon in subsequent court proceedings, save for specified exceptions. As recognised in Pentagon Food Group v B Cadman, the contractual and formal framework of mediation renders it a particularly clear instance of ‘without prejudice privilege’, which can be reinforced by the parties’ mediation agreement and their...
ARCHIVED : This Practice Note is archived and no longer maintained. It collates a curated set of illustrative authorities on the Disclosure Scheme under CPR PD 57AD in the Business and Property Courts (including the period when the scheme ran as a pilot from January 2019 to September 2022), concentrating on rulings spanning 2019 to 2025. It showcases the breadth of factual contexts and questions that can emerge under the Disclosure Scheme. The selection is intended to demonstrate varied factual matrices and recurring disclosure issues and themes. Any references to parts of the scheme reflect the version in force when the particular decision was given and may since have altered. For guidance on the disclosure scheme, see: Disclosure Scheme ( Business & Property Courts)—overview. Case details and new analysis Principle/facts Comments The Royal Borough of Kensington and Chelsea v Beko Poland...
This Practice Note provides guidance on bringing an appeal in the Court of Appeal under Part 52 of the CPR and Practice Direction 52C. For guidance on related matters, see: guidance on appeals to the UK Supreme Court ( UKSC), covered in the subtopic: Appeals to the Supreme Court guidance on conducting appeals to the High Court, found in Practice Note: Conducting an appeal in the County Court or the High Court guidance on the destination of appeals, found in Practice Note: Starting an appeal—destination of civil appeals Case managing the appeal The appeal court may issue such directions as the case requires, and those directions take precedence over any provisions within CPR PD 52C ( CPR PD 52C, para 2). Multiple appeals Where two or more appeals are pending in the same or related proceedings, the parties must: seek directions as to whether they are to be heard together or...
What is an error of procedure? Procedural missteps may occur in the course of litigation. In certain situations, CPR 3.10 permits the court to correct such a misstep. CPR 3.10 empowers the court to make an order to cure an ‘error of procedure’. The central issue, therefore, is what amounts to an error of procedure. In Steele v Mooney, the Court of Appeal noted that procedural errors can take many forms and are not confined to non-compliance with a rule or practice direction. When considering the phrase, the Court of Appeal concluded there is no need to give ‘error of procedure’ in CPR 3.10 an unduly narrow meaning, as a restrictive interpretation would generate difficult classification questions. That, in turn, would undesirably foster uncertainty and intricate submissions about how an error should be characterised. A broad, common-sense approach should therefore be taken. In Aquila WSA...
This Practice Note outlines legal professional privilege ( LPP) in Scottish civil litigation. It should be read alongside Practice Note: Privilege in Scotland—general principles, which sets out the two main categories of legal professional privilege: legal advice privilege ( LAP) and litigation privilege ( LP), and also refers to without prejudice privilege, waiver of privilege and common interest privilege. For the position in England and Wales, see: Privilege and without prejudice communications—overview and Practice Note: Privilege—general principles which, in addition to providing an overview, link to more detailed guidance on aspects of LPP. Key: FOI—freedom of information LAP—legal advice privilege LP—litigation privilege LPP—legal professional privilege Accessing privileged material in Scottish civil litigation In Scotland, several mechanisms enable recovery of otherwise privileged documents or communications, either within proceedings or outwith the court process, including: section 1 of the Administration of Justice ( Scotland) Act 1972 ( AJ( S) A...
This Practice Note reviews the current law of prescription in Scotland. Major reforms were introduced by the Prescription ( Scotland) Act 2018 ( P( S) A 2018). Sections 5 and 13 of the P( S) A 2018 took effect on 1 June 2022. The remainder came into force on 28 February 2025 under the Prescription ( Scotland) Act 2018 ( Commencement, Saving and Transitional Provisions) Regulations 2022, SSI 2022/78. For guidance on: the specific rules governing the prescriptive period for obligations to make reparation/pay damages, see Practice Note: Short negative prescription in Scotland—the prescriptive period for obligations to pay damages the law of limitation in Scotland, see Practice Note: Limitation of actions in Scotland, which also addresses the distinctions between limitation and prescription in Scots law the nearest equivalent in England and Wales, see:...
ARCHIVED: This Practice Note has been archived and is not maintained. Code of conduct requirements A solicitor’s interaction with witnesses must be managed with care. When compiling witness evidence there are fresh obligations for solicitors, outlined in the SRA Code of Conduct within the new SRA Handbook, which took effect on 6 October 2011 (the Code). Solicitors are now expected to satisfy a series of compulsory Outcomes, with indicative behaviours ( IBs) used to signal whether those Outcomes are being met. Chapter 5 of the first Section of the Code regulates solicitors’ dealings with the court and contains the Outcomes together with the relevant IBs to be considered when preparing witness evidence. The IBs give clear illustrations of the types of conduct regarded as falling below the standards expected of solicitors when drafting witness statements......
ARCHIVED : This archived Practice Note sets out issues to weigh up when planning to interview a witness of fact, with the aim of drafting a witness statement for use in civil proceedings. It reflects the requirements for preparing trial witness statements in the Business and Property Courts under CPR PD 57AC and, in that context, considers ways to refresh a witness’s recollection, for example by supplying documents before meeting them. It also highlights the documents you will require and what to consider if relevant materials are held by the witness. Finally, it provides practical pointers for the person taking the statement. It is not maintained and is supplied for background information only. Read this Practice Note alongside: Witnesses—interviewing and preparing for trial [ Archived], which includes, among other topics, speaking to another party’s witness and a witness’s...
This Practice Note examines what must be done to ready a case for trial and identifies the documents commonly required. It also provides guidance on interpreting and applying the relevant CPR provisions, and notes that additional requirements may apply depending on the court—see Court specific guidance. The preparation includes: chronologies case summaries issues in the case (list of issues) reading lists list of authorities trial bundles skeleton arguments Preparation is key Careful planning is essential to grasping and presenting your case effectively. Some last-minute shifts to your client’s or your opponent’s case cannot be avoided; nevertheless, if everything else has been organised and anticipated, any interruption can be minimised. Good preparation may also create space for late settlement discussions. Where a pre-trial review ( PTR) has taken place, the court will usually have resolved any outstanding matters so the case is ready for trial. For more on PTRs, see Practice Note:...
Applications in the Technology and Construction Court If your case is proceeding in the Technology and Construction Court ( TCC), the provisions of the TCC Guide apply to any application you bring. This Practice Note sets out guidance on applications in the TCC, with reference to the appropriate sections of the TCC Guide. It focuses on preparing for an on-notice application hearing in the TCC, particularly the documents that must be readied before the hearing, and the manner and timing of providing them to the court. For help with the overall process of making an application in the TCC, from pre-application considerations through to issue, see Practice Note: Making an application in the Technology and Construction Court ( TCC). The following general points should be noted: The TCC Guide offers practical information about TCC proceedings but is not a substitute for the CPR and must be read...
ARCHIVED: This Practice Note is archived and no longer maintained. Except where an appeal notice was lodged, or permission to appeal was granted, before 1 October 2012, it is provided for historic reference only... For guidance on the current regime for starting an appeal, see the Practice Notes: Grounds for appealing and preliminary considerations; Starting an appeal—destination of civil appeals; and Starting an appeal—general provisions. Any CPR rules and practice directions cited here link to the provisions now in force rather than those that applied before 1 October 2012. For the pre- October 2012 position, consult the attached PDF documents... Form of notice The appellant’s notice sets out the appellant’s case on appeal. It must be in the prescribed format: Form N164 for appeals against small claims track decisions Form N161 for all other appeals (excluding appeals to the Supreme...
ARCHIVED: This Practice Note has been archived and is not maintained Save where an appeal notice was filed or permission to appeal obtained before 1 October 2012, this Practice Note is kept for historical reference only. For current requirements, see Practice Note: Conducting an appeal in the Court of Appeal. Any CPR rules and practice directions cited here will direct you to the provisions presently in force, not those that applied before 1 October 2012. For the pre- October 2012 position, consult the attached PDFs: CPR 52 (old) CPR PD 52 (old) Filing and serving documents Documents must be filed at the Civil Appeals Office Registry, Room E307, Royal Courts of Justice, Strand, London WC2A 2LL. Tel: 020 7947 6409. The Court of Appeal will not serve documents; service rests with the parties. Filing by email is permitted for: an...
This Practice Note surveys a selection of significant and illustrative rulings addressing how the courts decide whether to direct a preliminary issue or a split trial. It should be read alongside Practice Note: Dispute resolution—preliminary issues and split trials. Case details and analysis Issues considered Petersen Energia Inversora v The Argentine Republic [2026] EWHC 344 ( Comm) News Analysis: Foreign law disputes—non-compliance with CMC order risked loss of foreign law defence ( Direct Investments Ltd (a company in receivership incorporated in the British Virgin Islands) v Mittal- Goenka) Waksman J declined Petersen’s bid to split the jurisdictional hearing, despite submissions that some points could be determinative. The claimants said that threshold issues—such as the competence of the Southern District of New York court, submission to jurisdiction, and issue estoppel—could dispose of the proceedings without addressing Argentina’s substantive public policy and state immunity defences. They...
ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note is retained for historical reference. It outlines the proposals to reform Part 36 that were scheduled for, and which came into force in, April 2015. For guidance on the rules applying from 6 April 2015, see Practice Note: Part 36 offers—what are they, why make them? and related content. A Part 36 sub-committee of the CPR Committee was formed to review the whole of Part 36 and to consider whether reform was required; any changes to be implemented through CPR amendments in 2015, with April 2015 the anticipated commencement date. The sub-committee is chaired by Edward Pepperall QC and includes: Mr Justice Sales David Di Mabro Amanda Stevens Qasim Nawaz Although Part 36 was comprehensively revised in 2007, the subsequent reforms target particular issues rather than replacing Part 36 in its...
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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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