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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 retired Practice Note is no longer updated and exists for background information only...
ARCHIVED: This Practice Note has been archived and is not maintained. Introduction It provides an overview of the business considered at the CPR Committee ( CPRC) meeting on 10 May 2019, of interest to general dispute resolution practitioners. The session was held in public before a number of interested members of the public, who had applied to attend and observe the proceedings. The agenda ranged widely, covering the County Court Legal Adviser Pilot— Final Charging Orders CPR PD51T, witness evidence from non- English speakers, the new lacuna sub-committee, online civil money claims, the JUSTICE report ‘ Understanding Courts’, the disclosure pilot scheme under CPR PD 51U, forms in the Business and Property Courts, enforcement, litigants in person, expert evidence on interim applications, public hearings, statements of truth and statements of case, digital case management systems, and general court reform. This Practice Note provides a...
ARCHIVED : A persistent challenge for dispute resolution specialists is staying abreast of developments in case law that influence their practice area, or affect civil litigation procedure more generally. This Practice Note distils the principal appeal decisions in England and Wales (ie rulings of the Court of Appeal and Supreme Court and, where appropriate, selected judgments of the Court of Justice of the European Union ( Court of Justice)) that we have covered, giving users straightforward access to those rulings; see: Key civil litigation appeals in review—2021. You can navigate this material via the table of contents on the left-hand side, or search the tracker using [ CTRL]+[ F]. The Practice Note also highlights a number of forthcoming appeals, where identified, to support horizon scanning. It is not designed to be a comprehensive catalogue of every appeal and/or significant ruling of interest to dispute...
ARCHIVED: This Practice Note has been archived and is not maintained. Court of Appeal—retrospective applications to extend time for the appellant's notice analogous to relief from sanctions applications The Court of Appeal has confirmed that requests made after the deadline to extend time for filing an appellant’s notice are to be treated as akin to applications for relief from sanctions. Consequently, the approach in Mitchell and Denton governs such bids in full. This equivalence follows over twelve years of case law recognising an implied penalty for breaching the timetable in CPR 52.4(2): namely, forfeiture of the opportunity to seek to pursue an appeal. The ruling helpfully assists practitioners by dispelling confusion about the scope and effect of CPR 52.4 and/or CPR 52.6. It also canvasses further specific factors relevant to late notices of appeal and compliance with case management directions, including the clear...
ARCHIVED : This Practice Note has been archived and is not maintained. This Practice Note examines how the UK’s departure from the EU influences the application of Regulation ( EU) 1215/2012, Brussels I (recast), when determining jurisdictional disputes. It addresses: the applicable provisions in the Withdrawal Agreement between the UK and the EU; relevant domestic legislation, including, where relevant, transitional provisions, together with the position of the EU Commission; the implications of the UK becoming a third state as a consequence of leaving the EU. It should also be noted that other jurisdictional regimes are affected by the UK leaving the EU. For guidance, see Practice Note: Brexit post implementation period—considerations for dispute resolution practitioners— Jurisdiction. For specific guidance on the position during the implementation period, see Practice Note: Brexit implementation period—jurisdiction [ Archived]......
E& W Brussels I (recast)—application to third states [ Archived] ARCHIVED: This Practice Note is archived and is not maintained. This Practice Note reviews how Regulation ( EU) 1215/2012, Brussels I (recast), applies to disputes involving non- EU Member States (often called third states). It highlights the provisions in that regulation capable of applying to such situations—each concerning jurisdiction—and considers the implications for the UK when those provisions are applied after its withdrawal from the EU. Definitions This Practice Note uses a number of definitions: European Communities Act 1972— ECA 1972 European Union ( Withdrawal) Act 2018— EU( W) A 2018 European Union ( Withdrawal Agreement) Act 2020— EU( WA) A 2020 exit day—defined by EU( W) A 2018, s 20, as 31 January 2020 at 11 pm Hague Convention on Choice of Court Agreements concluded on 30 June 2005 at The...
This Practice Note This Practice Note examines the incorporation of a jurisdiction clause into a contract by reference to either: standard terms and conditions the wording of a separate contract It offers a general overview of the position in relation to charter-parties and bills of lading, as well as insurance and reinsurance. It also includes examples of provisions that courts have found did not succeed in importing jurisdiction clauses from one agreement into another. The Note refers to decisions under the Brussels Convention, Regulation ( EC) 44/2001, Brussels I, and Regulation ( EU) 1215/2012, Brussels I (recast) (the Brussels Regime), where those authorities give broad guidance on how the courts approach the incorporation of jurisdiction agreements. For detailed guidance on the courts’ approach to whether a jurisdiction clause has been incorporated into a...
This Practice Note explores jurisdiction agreements (choice of court agreements): what they achieve, why they are adopted, and comparable arrangements pursuing the same objective. It outlines the main categories of jurisdiction agreement together with remedies available if one is breached. For assistance distinguishing the different types, see: Determining court jurisdiction—overview. It is likewise essential to grasp the operation of any formal jurisdictional regime. For insight into which regimes may apply, see Practice Note: Jurisdiction rules. A principal regime is the Hague Convention on Choice of Court Agreements. That convention applies between the UK and other contracting states in proceedings where the parties have entered into an exclusive jurisdiction agreement... What is a jurisdiction agreement? A jurisdiction agreement is the parties’ undertaking specifying which court(s) will have authority to determine disputes that could arise between them. For clarity on the concept of...
ARCHIVED: This archived Practice Note is no longer updated and is provided solely for background reference. Additionally, certain links might not point to the provisions as they stood on the date the guidance in this Practice Note was issued. For more details on earlier and/or later amendments to the CPR, consult: CPR updates—overview and Procedure Rule Committee minutes—overview......
Civil justice reform: Consult our Practice Note, Civil justice reform in Scotland—virtual hearings and electronic submission of documents, for advice on the present rules and procedures of the Scottish civil courts regarding remote hearings and the digital signing, sending and lodging of documents. The Practice Note also addresses the approach to making and/or answering a judicial tender in proceedings involving a single pursuer and a single defender in Scotland today......
This Practice Note examines judicial tenders in the setting of Scottish civil actions involving multiple parties, in particular where a plurality of parties is present. It outlines sources of related guidance and mechanisms. For guidance on the following, see: additional matters concerning judicial tenders in Scotland, see Practice Notes: Tenders in Scottish civil litigation—nature, purpose and expenses implications, and Making and responding to judicial tenders in Scottish civil litigation alternative extra-judicial settlement routes in Scottish civil proceedings, see Practice Notes: Alternative dispute resolution in Scotland, and Pursuers’ offers in Scottish civil proceedings the nearest counterpart in civil proceedings in England and Wales, see Settlement and settling disputes—overview, which summarises the subject and links to detailed guidance on settlement options in England and Wales, including Practice Notes: Settling disputes—settlement offers ( Calderbank, WPSAC and Part 36) and Without prejudice...
Contract Where an agreement is entered into by two or more parties, it may include a promise or obligation undertaken by two or more of them. Any such promise may be: joint several joint and several Whether an undertaking in contract is joint, several, or joint and several is a matter of construction, depending on the parties’ intention as revealed by the terms of the contract. For example, in Rhinegold Publishing v Apex Business Development, statutory demands were issued against Rhinegold Ltd and a related company, Tannhauser Ltd, for approximately £22,000 and £31,000 respectively. A settlement agreement followed under which the parties agreed to pay the sums due, but Tannhauser did not fully comply. Although the agreement was silent on liability, the High Court decided that, on a proper reading, the parties were jointly and severally liable. As a result, Rhinegold had to meet the...
ARCHIVED: this Practice Note has been archived, is not maintained, and is offered solely for background information. Furthermore, some links may no longer direct you to the relevant provisions as they existed at the time the guidance in this Practice Note was first published. For those who have already reviewed the Practice Note: Jackson reforms three months on [ Archived], we have highlighted the fresh material added to take account of information introduced during the period 1 July 2013 to 30 September. Overall approach by the courts to the Jackson reforms: NEW In the reported decisions, the courts are continuing to apply a strict approach when addressing parties who have failed to comply with CPR provisions. Jeremy Richardson J summarised this in Baker, noting that there is now a significantly greater emphasis on compliance across all courts......
ARCHIVED: This Practice Note is archived, is no longer maintained, and is supplied for background reference only. In addition, some links may not lead you to the provisions as they stood on the date the guidance in this Practice Note was issued. Jackson Reforms—one year on To align with the significant April CPR amendments, we are pleased to unveil a multimedia update charting the development and effect of the Jackson reforms across the past 12 months. Recorded to mark the first anniversary of the reforms’ implementation, the discussion examines: Litigation risk transfer ( CFAs, DBAs, ATE and third-party funding) Relief from sanctions, proposed changes to Part 3 and costs budgets, and the proposed review of Part 36 Disclosure developments, the interaction with costs budgeting, and practical consequences The panel comprises Neil Smith, Head of Lexis+® UK Dispute Resolution Group; Keith Levene, Legal Director ( Costs Lawyer) at Pinsent Masons; Edward...
ARCHIVED This archived Practice Note is not maintained and is provided solely for background information. Further, some of the hyperlinks may no longer direct you to the provisions as they stood at the date the guidance in this Practice Note was published. Costs budgeting Costs budgeting is presented as a cornerstone of the reforms, seeking to bring control to expenditure during litigation and to ensure costs are kept within reasonable and proportionate bounds. Against that backdrop, what, over the past three months, has been done to help practitioners understand how all of this will operate in practice? Exemptions—will they remain in place? The first point to make is that the court-specific exemptions have been under scrutiny since before the reforms even took effect. A sub-committee of the Civil Procedure Rule Committee has now been convened to consult on whether the costs budgeting exemptions ought to remain....
ARCHIVED: This Practice Note is for historical purposes only. On 1 April 2013, a fresh regime for the management of litigation costs in England and Wales came into effect. Traditional costs estimates, in their previous guise, were swept away, with formal costs budgets installed in their stead. As a central plank of the Jackson Reforms, the aim was to allow the courts to supervise parties’ expenditure during proceedings, thereby ensuring that spending remained reasonable and proportionate—not only by reference to the value of the dispute, but also so that court time was used proportionately across all court users. Despite the substantial time and effort invested in the Jackson Reforms, it was soon recognised that the exemption rules merited further consideration. A consultation has produced an amendment to the costs budgeting exemption, which is due to take effect on 22 April 2014, together with other...
ARCHIVED: This Practice Note has been archived and is not maintained. NOTE: This Practice Note offers a synopsis of the effect of the Jackson reforms across the 12 months to 1 April 2014 and excludes any developments beyond that point in time. A principal aim of the civil litigation costs review (which concluded in the Jackson Reforms of April 2013) was to determine how case management procedures influence costs overall and to assess whether alterations in process and/or procedure might ultimately deliver more proportionate costs......
This Practice Note offers direction on reading and applying the pertinent CPR provisions. The applicable court may impose further requirements, so remain alert to any extra rules—see the section Court specific guidance below for more detail. Depending on the court, those additional provisions may differ. What is a writ of delivery? If a claimant succeeds in a claim for the return of identified goods, the High Court can order the defendant to hand those goods back to the claimant without delay, as directed by the order. Should the defendant not comply within the terms of the order, a writ of delivery enforces that order. This is a High Court-issued document directing High Court Enforcement Officers to secure delivery of the goods by the defendant. A writ of delivery falls within the CPR 83.1(2)(l) definition of a ‘writ of...
This Practice Note sets out guidance on issues-based costs orders, explaining their role and when the court may deem such an order suitable. It also addresses potential pitfalls, instances where the court has considered making such an order against a party who otherwise succeeded overall, and the broad principles guiding the court when imposing an issues-based costs order. Note: before 1 October 2013, the discretion was found in rule 44.3, and earlier authorities cited here refer to that rule. What are issues-based costs orders? An issues-based costs order enables the court to permit or refuse recovery of costs by reference to discrete issues arising within the litigation. The present discretion is contained in CPR 44.2(6)(f), which provides that the paying party must meet the receiving party’s costs incurred in relation to identified issues addressed during the proceedings......
Background This Practice Note explores the law of irritancy within the sphere of commercial leases in Scotland. It examines the distinction between legal and conventional irritancies, the procedure for exercising irritancy, available defences, and the consequences for sub-leases and charge-holders. It does not cover: human rights challenges to irritancy the interaction of irritancy with the corporate insolvency regime irritancy in the context of residential property, see Practice Note: Residential tenancies in Scotland—bringing to an end irritancy in the context of agricultural property, see Practice Note: Irritancy of agricultural tenancies in Scotland Irritancy is a landlord’s remedy that permits termination of a lease following a tenant’s breach. It is equivalent to the English remedy of forfeiture. An irritancy may arise by operation of law or be conventional. Legal irritancy An irritancy arising by law is known as a legal irritancy. Under Scots common law, the sole recognised legal irritancy is for...
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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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