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This Practice Note outlines the law concerning criminal recklessness. The subjective test for recklessness Certain statutory and common law offences allow the prosecution to prove mens rea through ‘recklessness’. Put simply, recklessness is where the accused takes an unjustified risk that results in unlawful harm or damage. The House of Lords in R v G reaffirmed the subjective approach to recklessness. Before R v G, two distinct tests were used, depending on the offence charged: Subjective recklessness from R v Cunningham: the prosecution had to establish that the accused personally foresaw the risk. Objective recklessness from R v Caldwell: the prosecution only needed to show that the risk would have been obvious to a reasonable person, without proving the accused themselves foresaw it. In R v G, the House of Lords concluded that the objective test could operate unfairly where a defendant did not foresee the
This Practice Note examines the remedy of rescission, explaining when and in what manner a contract can be unwound (at common law, in equity and under statute) and thereby terminated and brought to an end. It covers the consequences and effects of rescission, the principal grounds for setting aside an agreement (misrepresentation, mistake, undue influence, duress, non‑disclosure, fiduciary misdealing and bribery) and the main obstacles to claiming rescission—affirmation, the intervention of third‑party rights and the impossibility of restitution. For further guidance on rescission in the context of misrepresentation, see Practice Note: Misrepresentation—rescission as a remedy. There are many ways in which a contract may reach its end; see: Terminating contracts—how and when a contract ends—overview for a brief and accessible summary, with links to the related further practical guidance, including Practice Note: Termination and expiry of contracts. For a table
What is a res judicata? A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal. Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice. in personam—binds the parties and their privies in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world) A party may rely on res judicata: as an estoppel to defeat an opponent’s claim or defence; and/or as the basis of their own claim or
The offence of causing grievous bodily harm with intent Wounding or causing grievous bodily harm (GBH) with intent can be tried solely in the Crown Court on indictment. Elements of the offence Under the Offences against the Person Act 1861 (OATPA 1861), the prosecution must establish that the defendant unlawfully and maliciously: wounded with the intention of causing GBH, or caused GBH with that intention, or wounded intending to resist or prevent the lawful arrest or detention of any person, or caused GBH intending to resist or prevent the lawful arrest or detention of any person ‘Unlawfully’ and ‘maliciously’ Unlawfully The wounding or causing of GBH must be unlawful. Such conduct may be lawful if used: in self-defence in defence of another in defence of property for the prevention of crime where the victim gave express or implied consent For further information on these defences, see below:
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ARCHIVED: This Practice Note is archived and not maintained. It addresses the position at the close of the implementation period after the UK’s departure from the EU. Throughout the implementation period, which begins on exit day (ie the day the UK leaves the EU), the provisions of the withdrawal agreement apply. For guidance on the implementation period and the effect of the withdrawal agreement on service, see Practice Note: Brexit implementation period—applicable law [ Archived]. This note considers the consequences of the UK leaving the EU without a deal for deciding which law governs a dispute, ie the applicable law (also referred to as governing law). The principal UK measure addressing a no deal Brexit and applicable law is The Law Applicable to Contractual Obligations and Non- Contractual Obligations ( Amendment etc) ( EU Exit) Regulations 2019, SI 2019/834, which modifies two EU...
Class actions— Netherlands— Q& A guide This Practice Note offers a jurisdiction-specific Q& A on collective actions in the Netherlands, published within the Lexology Getting the Deal Through series by Law Business Research (law stated as at 24 October 2022). Authors: Freshfields Bruckhaus Deringer— Jeroen van Hezewijk; Basya Klinger. 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 Netherlands comprises 11 judicial districts, each served by its own court. Appeals from district court judgments are heard by the competent court of appeal; there are four courts of appeal. A further appeal lies, as of right, to the Supreme Court. Collective claims must be issued before the civil chamber of the district court. The usual procedural rules apply, including rules on absolute and relative...
Although every litigation funding agreement ( LFA), along with its related papers, will in practice differ based on the financier and the nuances of the case being financed, there are core matters that must be tackled during the distinct stages of negotiation. This Practice Note forms part of a concise series of short Practice Notes by Tanya Lansky and Tets Ishikawa, Managing Directors at Lion Fish Group Ltd, designed to give participants involved in negotiating and assessing LFAs and their ancillary documents a clearer grasp of the relevant dynamics at play. Investment top-ups One plans for, and trusts, that the budget settled at the start of an LFA will suffice in full. Yet, because litigation is uncertain, there is always a possibility the initial budget proves materially insufficient, prompting a requirement to increase the investment sum agreed. Whilst some prefer to address top-up...
Although every litigation funding agreement ( LFA), together with its associated documents, will differ according to the funder and the particularities of the matter being financed, there are recurring issues that must be addressed throughout the negotiation stages. This Practice Note is part of a short series of Practice Notes by Tanya Lansky and Tets Ishikawa, Managing Directors of Lion Fish Group Ltd, created to give those negotiating or assessing LFAs and their accompanying documents a clearer grasp of the factors in play. Control A frequent question for stakeholders considering litigation funding is how a funder’s involvement in a financed case might translate into control. Funders should not be directing a funded claim; this is commonly handled by an express clause confirming that the litigant retains sole conduct of the proceedings. However, when negotiating an LFA, one should be alert to the nuances that can attach to any...
This Practice Note sets out the principal components for bringing a negligence claim. For targeted guidance on negligence concerning company/parent company liability, banks, and professional negligence, see: Practice Note: Tortious liability—companies Practice Note: Negligence—banks and the duty of care Professional negligence claims—overview Negligence—what are the key ingredients to establish a claim in negligence? To found liability in negligence, four essential elements must exist: a duty of care owed by the defendant to the claimant a breach of that duty loss or damage resulting from the breach the damage being reasonably foreseeable These tests can intersect, and in some situations strict compartmentalisation is somewhat artificial on close analysis. Nonetheless, addressing each in turn is a vital framework for assessing whether an actionable negligence claim has emerged. Negligence—a duty of care is...
This Practice Note sets out examples of the courts’ approach to applications seeking a negative declaration. It should be emphasised that a negative declaration is a discretionary remedy lying with the court, and the outcome in any matter depends on its specific facts. The decisions cited here carry no precedential force; they serve only to illuminate the kinds of points the court may weigh. Accordingly, any application must be assessed on its merits and circumstances. This material aims to assist by signposting possible considerations only. Judgment and citation Considerations In Cape Intermediate Holdings Ltd v Protopapas [2024] EWHC 2999 ( Ch), when assessing whether to grant negative declarations, the judge observed that BNP Paribas SA v Trattamento Rifiuti Metropolitani Sp A [2020] EWHC 2436 ( Comm) offered a helpful review of authorities and guidance. The declarations were pursued in relation to a receiver who was not...
ARCHIVED This Practice Note is archived and is not being maintained. On 3 October 2016, several reforms to civil appeals took effect. They included: the introduction of a new CPR 52 (the principal part of the Civil Procedure Rules governing appeals) revisions to CPR PD 52C (relating to appeals to the Court of Appeal) to make that Practice Direction more user-friendly and to reduce paperwork before the Court of Appeal a new destination of appeals order together with an amended CPR PD 52A, removing the exceptions under which appeals from certain final County Court decisions would go to the Court of Appeal For a tabular overview of these wider appeal changes, see Practice Note: Changes to Part 52 in October 2016 and transitional provisions [ Archived]. This Practice Note addresses only the amendments to CPR 52 and aims to assist...
Introduction This Practice Note explains the disclosure obligations for matters placed on the multi-track. It further offers guidance on how to construe and apply the pertinent provisions of the Civil Procedure Rules ( CPR) and should be used alongside: Disclosure under CPR 31—pre-action considerations—checklist, and Disclosure considerations under CPR 31 after proceedings have started—checklist. For broad guidance on disclosure generally, see: Disclosure—overview. Note: this Practice Note does not aim to address claims falling within the Disclosure Scheme of the Business and Property Courts. For general guidance on that Scheme, see: Disclosure Scheme ( Business & Property Courts)—overview. For general guidance on disclosure across the other tracks, see the following Practice Notes: Disclosure in the small claims track Disclosure in fast track cases Disclosure in intermediate track cases The scope of a claim in the multi-track The multi-track is intended for cases of greater complexity, featuring nuanced legal or factual...
ARCHIVED: This archived Practice Note is no longer maintained and is supplied purely for background reference. In addition, some links may not take you to the provisions as they stood on the date this Practice Note’s guidance was issued. Note: this Practice Note provides guidance only on the multi-track provisions that took effect on 1 April 2013. It does not offer guidance on any later procedural amendments (whether to the CPR or to any other procedural rules). Nor does it give guidance on the implementation or construction of the April 2013 procedural changes (or any that followed). For guidance on the Jackson Reforms one year later and on the April 2014 CPR developments, see the Practice Notes: Jackson reforms on case management—one year on [ Archived] and CPR changes— April 2014 [ Archived]. On 1 April 2013, the Jackson Reforms...
This Practice Note considers the position regarding the diligence of money attachment in Scotland. This Practice Note examines the current position on money attachment diligence in Scotland, and directs readers to related materials. For guidance on: alternative diligence options within Scottish civil procedure, refer to Practice Note: Enforcement in Scottish civil litigation, which, in turn, signposts detailed guidance on a number of diligence mechanisms available in Scotland the comparable position in England and Wales, see Introduction to enforcement—overview, which, as well as offering an overview of this topic, links through to more detailed guidance on various aspects of domestic enforcement in England and Wales enforcement across borders, consult Practice Note: Cross‑border enforcement—a guide for dispute resolution practitioners, which, as well as setting out an overview of this topic, links through to more detailed guidance on various aspects of...
The tort of misuse of private information is the chief route for enforcing privacy rights, and is relied upon to protect privacy rights, at least against defendants who are not public authorities, and is often the principal claim advanced. Yet, in any particular dispute, a claimant would be prudent and well advised to assess whether deploying alternative causes of action could reinforce their privacy case. As Lord Hoffmann remarked in Wainwright v Home Office (para [18]), there are various common law and statutory remedies for which protecting privacy is among the underlying values they secure. This Practice Note reviews six causes of action that may bear upon a ‘privacy claim’. For more information on misuse of private information claims, see Practice Notes: Starting a claim for misuse of private information—a practical guide Responding to a claim for misuse of private...
Note: as of 19 January 2026, the Public Offers and Admissions to Trading Regulations 2024 ( POATRs), SI 2024/105, came into force. They govern the public offers of securities and the admission of securities to trading in the UK from 19 January 2026, and are therefore applicable where the prospectus or listing particulars were issued on or after that date. A key element of the updated regime is the repeal of section 90 of the Financial Services and Markets Act 2000 ( FSMA 2000) and its substitution by regulation 30 and Schedule 2 of the POATRs, together with specific provisions concerning the inclusion and use of ‘protected forward-looking statements’ ( PFLS) in such prospectuses/listing particulars. See New Analysis: the UK listing and prospectus regime reform—potential impact on securities litigation. This Practice Note addresses claims for compensation under the statutory FSMA 2000...
Class actions— Mexico— Q& A guide This Practice Note presents a Mexico-focused Q& A on class actions, issued within the Lexology Getting the Deal Through series by Law Business Research (law stated as at 13 October 2022). Authors: SEPLAW Sepúlveda y Díaz Noriega SC— Alfonso Sepúlveda; Habib Díaz; Luis Fuentes Describe how the court system addresses collective or representative actions. In which forums can class actions be filed? In Mexico, class claims must be brought before the federal courts. The nation comprises 32 states, each with its own civil procedural code. Even so, collective actions are governed by the Federal Civil Procedures Code, which grants exclusive jurisdiction to the federal judiciary. How prevalent are class actions in your jurisdiction, and how have lawmakers and the courts...
What is merger in judgment and its relationship with res judicata? A res judicata is a determination made by a judge or tribunal with authority over the cause of action and the parties, which brings the decided matter to a final conclusion so that it cannot be re-litigated by those bound by the judgment, save on appeal. For further guidance, see Practice Note: The doctrine of res judicata. Merger in judgment is the doctrine that, once judgment is entered on a cause of action, the cause is extinguished and the claimant’s only entitlement is upon the judgment. It is a substantive rule concerning the legal effect of an English judgment, treated as ‘of a higher nature’, so that the lesser remedy is absorbed into the greater and thus the underlying cause of action is superseded ( King v Hoare). In the criminal sphere, autrefois acquit and...
ARCHIVED: This archived Horizon scanner reviews recent and upcoming developments relevant to Dispute Resolution ( DR) lawyers as at 30 May 2023. It notes updates since the 9 March 2023 edition of the Horizon scanner: Dispute Resolution— Horizon scanner— March 2023 [ Archived]. Hot topic— London International Disputes Week LIDW ran from 15–19 May 2023 under the theme ‘ Adapting to a Changing World’; Lexis Nexis was among the founding members, with the first event held in 2019. The week opened with an International Arbitration conference; day two delivered the main dispute resolution conference, and the remaining days featured numerous Member Hosted Events. Together with various drinks and dinners, the programme gave this forward‑looking forum a strong platform to achieve its aim of ‘bringing together all the stakeholders in London’s dispute resolution community to debate and explore the key issues and topics, and to help drive...
This Practice Note underscores the importance of accurately identifying and understanding your defendant before issuing proceedings, with the goal of improving the likelihood of successful post judgment enforcement. It covers enquiries undertaken pre-issue and as matters progress, and points to tools available for gathering information about the judgment debtor after judgment. For guidance on the various enforcement options, see Practice Note: Which enforcement of judgment method should I choose? When should you consider enforcement issues? Enforcement—the practical recovery of the debt or property that led your client to commence proceedings—should be front and centre from the moment you first take instructions. How effectively a judgment or order can be enforced will largely be shaped by factors relating to the claim that must be assessed at the outset. proper identification of the correct party to sue—your pre-issue investigations should have identified the correct party(ies) to sue and you...
ARCHIVED: This Practice Note has been archived and is not maintained. Following the UK’s departure from the EU, the Rome Convention no longer binds the UK as a matter of international law. Even so, its substantive provisions still apply in certain instances—ie where a contract was concluded between 1 April 1991 and 16 December 2009 and meets the criteria required under the Act. Accordingly, those substantive rules have been preserved within the C( AL) A 1990, but they are subject to amendments set out in The Law Applicable to Contractual Obligations and Non– Contractual Obligations ( Amendment etc) ( EU Exit) Regulations 2019, SI 2019/834. For further guidance on the current position, see the Practice Note: Contracts ( Applicable Law) Act 1990—application and interpretation. This Practice Note examines Article 8 of the Rome Convention, which addresses material validity under the Convention...
Hot topic—extension of fixed recoverable costs ( FRC) ARCHIVED: This archived Horizon scanner reviews both recent and forthcoming developments of interest to Dispute Resolution ( DR) lawyers as at 9 March 2023 date. Sophie Houghton, a solicitor in the Dispute Resolution Lexis+® UK team, examines the planned extension of FRC, scheduled to take legal effect in October 2023. The widened FRC will apply where the cause of action arises on or after 1 October 2023 and will strictly not have retrospective effect at all. As extended, FRC will attach to fast track claims seeking debt, damages or other monetary relief, save where the rules expressly exclude them. Unlike the current FRC framework, the new regime is far broader in scope and anticipates longer, higher-value and more intricate disputes. CPR 45 (fixed costs) is being revised to incorporate the fresh provisions, and draft rules for the FRC...
This Practice Note highlights challenges that can arise with certain witnesses, such as whether any payments may properly be made to them, and how to manage a witness who does not speak English. It also considers taking depositions for witnesses who are absent, and the use of witness summaries. This Practice Note does not deal with vulnerable witnesses—for additional guidance, see Practice Note: Planning, interviewing and choosing witnesses— Vulnerable witnesses. Nor does it cover the requirements for preparing trial witness statements in the Business and Property Courts, which are governed by CPR PD 57AD; see also Practice Note: Trial witness statements in the Business and Property Courts under CPR PD 57AC. How do I handle an unco-operative witness? You may encounter a potential witness who is reluctant to give evidence. There could be many reasons; it is often prudent to explore why and whether you can allay their...
This Practice Note examines the status and deployment of confidential information in civil proceedings, covering what amounts to confidential information, how it can be safeguarded, and the circumstances in which confidentiality may be lost. It also considers disclosure duties concerning confidential material, methods to protect such material from disclosure, inspection and citation in open court, disclosure for restricted purposes, confidentiality rings, reliance on confidential and covertly obtained information, receipt of confidential material by mistake, and the friction with other jurisdictions’ disclosure rules. What is confidential information? Information regarded as confidential includes: personal (or private) information trade secrets journalistic, artistic or literary confidences government secrets court-ordered settlement agreements requiring non-disclosure information specifically identified by contract as restricted password-protected email accounts documents generated within the solicitor–client relationship ( Anderson v Bank of British Columbia) documents that may be...
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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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