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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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UNCITRAL Working Group II: Dispute Settlement This Practice Note outlines the activities of the United Nations Commission on International Trade Law ( UNCITRAL) Working Group II: Dispute Settlement and directs readers to its reports. UNCITRAL Working Group II: Dispute Settlement ( Working Group II) ordinarily convenes twice a year to discuss and advance predetermined matters in arbitration and international dispute resolution. Its output has a concrete influence on the evolution of arbitration. For instance, it prompted amendments to the UNCITRAL Arbitration Rules 2010—see Practice Note: UNCITRAL Rules—background and introduction. This Practice Note provides access to the published reports of Working Group II together with related materials—including model clauses for expedited technology disputes. Note: UNCITRAL Working Group III is examining investor-state dispute settlement ( ISDS) reform—see Practice Note: UNCITRAL Working Group III—reports......
Frustration Frustration is a doctrine under English law that creates a common law right to bring a contract to an end when a frustrating event arises after the contract date. See Practice Note: Discharge by frustration. It is a notoriously demanding contention to establish. The doctrine injects uncertainty into contractual relationships, which the courts do not view favourably. For step-by-step guidance on assessing a possible frustration situation, see Practice Note: Frustration event analysis—a practical guide. You should also review the cases set out below, both for general direction on the stages involved and to demonstrate the courts’ stance. They are presented in reverse chronological sequence. Always remember that each dispute is fact sensitive and will be decided on its own merits, especially in light of the ‘multi-factorial approach’ endorsed in Edwinton Commercial Corp v Tsavliris Russ ( Worldwide Salvage and Towage) Ltd, The Sea...
This Practice Note introduces freezing injunctions, explaining what they are and the different types that can be applied for. For guidance on making and responding to an application for a freezing injunction, see the following resources listed in this section: Practice Note: Freezing injunctions—the application Practice Note: Freezing injunctions—the draft order Applying for a freezing injunction—checklist Responding to a freezing injunction—checklist Precedent: Affidavit in support of a freezing injunction Precedent: Affidavit in opposition to the continuation of a freezing injunction granted without notice For examples of judgments addressing these principles in more detail, see the following Practice Notes listed below: Freezing injunctions—illustrative decisions Freezing injunctions—key and illustrative decisions (2020–2024) [ Archived] What is a freezing injunction? A freezing injunction (or freezing order) is an interim order restraining a respondent from taking assets out of the...
This Practice Note sets out how the courts interpret freezing injunctions (often called Mareva injunctions or freezing orders). It explains what amounts to an asset, the behaviours prohibited, and the ramifications of breaching a freezing order. It also addresses the effect on third parties together with the recognised ‘exceptions’, including provision for living and legal expenses and transactions carried out in the ordinary and proper course of business (the Angel Bell exception). For general guidance on applying for a freezing injunction and the governing principles, see the following Practice Notes: Freezing injunctions—guiding principles Freezing injunctions—real risk of dissipation of assets Freezing injunctions—the application For further help with making or responding to a freezing injunction application, see: Applying for a freezing injunction—checklist Responding to a freezing...
The requirement of real risk Before the court will grant such relief, anyone seeking a freezing injunction has to meet several preconditions. They are set out in detail in Practice Note: Freezing injunctions—guiding principles. In brief, the applicant needs to demonstrate: a ‘good arguable case’ that there are assets to which a freezing injunction can attach a genuine risk that those assets will be dissipated so as to frustrate any judgment against the defendant that granting a freezing injunction is just and convenient This Practice Note focuses on the criterion of a real risk of dissipation of assets. Real risk—meaning and scope Once the court is satisfied it has jurisdiction over the substantive claim and that there is a good arguable case against the defendant, it then considers whether there is a ‘real risk’ that any judgment in the claimant’s favour will go...
This Practice Note examines freezing injunctions granted once a claimant has obtained judgment against the defendant. For the principles relevant to pre‑judgment applications for freezing injunctions, see Practice Note: Freezing injunctions—guiding principles. This guidance concentrates on interpreting and applying the pertinent provisions of the CPR. Depending on the court in which your matter proceeds, you should also be alert to additional provisions—see the main section below titled: Court specific guidance. 6 April 2025 changes The CPR provisions governing interim injunctive relief, including freezing orders, were amended with effect from 6 April 2025. In particular, CPR 25 underwent extensive revision and the specimen draft freezing order in Annex A to Practice Direction 25A was revoked. It was replaced by a new model order for a freezing injunction that came into force on 6 April 2025. The changes were not intended to make substantive...
This Practice Note examines how to approach forum non conveniens arguments when applying to set aside an order permitting service out of the jurisdiction on the basis that the claim form was not validly served. An application for permission to serve a claim form outside the jurisdiction requires, among other matters, the court to decide whether England and Wales is the appropriate place to determine the dispute. Permission to serve in another jurisdiction will only be given if the courts of England and Wales (the English courts) have jurisdiction. A defendant may seek to have an order authorising service out set aside if they consider the English courts do not have jurisdiction, or that the courts of another jurisdiction are the proper forum. For guidance on: how to set aside an order granting permission, see Practice Note: Cross-border...
This Practice Note examines the practical considerations when assessing the proprietary processes of following and/or tracing in civil claims. For guidance on what following and tracing involve and when they might be available, see Practice Note: Proprietary remedies—following and tracing. Following and tracing—not a remedy themselves Although often discussed within the sphere of proprietary remedies, following and tracing are processes, not standalone causes of action or remedies. The fact that an asset can be followed or traced does not, by itself, establish whether the claimant has a legal claim against a person or in relation to property, or indicate what remedy (if any) could be pursued. You should therefore give careful thought to the potential causes of action you might advance and against whom, assuming the property can be followed and/or traced. While following and tracing are not limited to cases featuring dishonest or...
This Practice Note offers direction on the distinct rules governing the prescriptive period for obligations to pay damages (previously, to make reparation). It ought to be read alongside Practice Note: Prescription in Scotland. Read it in tandem with that note for context and alignment within the overall wider prescriptive framework in Scotland. For insight into the law of limitation in Scotland, consult Practice Note: Limitation of actions in Scotland, which likewise addresses the distinctions between limitation and prescription in Scots law. Key: PL( S) A 1973— Prescription and Limitation ( Scotland) Act 1973 P( S) A 2018— Prescription ( Scotland) Act 2018 PL( S) A 1973, s 11 concerns obligations to pay damages (irrespective of the obligation’s source). It applies to every action in contract or delict where damages are claimed. Until 28 February 2025, the section referred to obligations to ‘make...
ARCHIVED: This Practice Note is archived and no longer maintained. It explores the issues arising in relation to Article 5 of Regulation ( EC) 44/2001 ( Brussels I), which deals with circumstances in which a claimant may bring proceedings in a jurisdiction where the defendant is not domiciled. Its coverage extends to tort and delict, together with other non-contractual claims. Note: since 10 January 2015, Regulation ( EC) 44/2001, Brussels I has been repealed in its entirety and replaced by Regulation ( EU) 1215/2012, Brussels I (recast). Transitional arrangements have, however, been put in place. For details of those arrangements and to assess whether the Brussels I provisions still apply to the matter you are dealing with, see Practice Note: E& W Brussels I (recast)—application and exclusions. Articles 5 and 6 of Regulation ( EC) 44/2001, Brussels I address...
ARCHIVED: this archived Practice Note is not maintained and is provided solely for background. In addition, some links may no longer point to the provisions as they stood when the guidance in this Practice Note was issued. For information about prior and/or later amendments to the CPR, see: CPR updates—overview and Procedure Rule Committee minutes—overview. Changes effective as of August 2011 New practice direction for 'privacy' injunctions— CPR PD 51F On 1 August 2011, CPR PD 51F came into force, introducing a pilot scheme to record data on the number and categories of non-disclosure injunctions—often termed ‘privacy’ and ‘super’ injunctions—moving through the courts. The data to be recorded, using a prescribed form completed by the judge hearing the application, covers: the claim/application number; whether the hearing was for an interim injunction, an application to extend/vary one, a final injunction, or an appeal against the...
ARCHIVED: This Practice Note is archived, is not updated, and is provided solely for background reference. In addition, certain links may no longer point to the provisions as they stood when the guidance was issued. For details of earlier and/or later changes to the CPR, see: CPR updates—overview and Procedure Rule Committee minutes—overview. Contents New costs rules and practice directions Transitional provisions for funding agreements Reform of conditional fee agreements Ban on referral fees Reform of After the Event insurance Damages based agreements Increased sanctions under Part 36 Non-pecuniary general damages—10% increase Proportionality Payments on account Qualified one way costs shifting Costs management Case management Disclosure Witnesses of fact Expert evidence Appeals New costs rules and practice directions A comprehensive reassessment of the costs rules and practice...
ARCHIVED: This Practice Note is no longer updated and is supplied purely for contextual reference. In addition, certain links might not lead to the provisions as they stood on the date this Practice Note’s guidance was issued. Key developments in DR in 2016—what you need to know During 2016, Dispute Resolution lawyers have witnessed a series of notable changes in practice, some concrete, some intended, and others still the subject of consultation, rumour and conjecture. These include: Revisions to court guides and a new CPR 52 (both already in effect); Additional proposals to amend CPR 52 (likely to be consulted on in 2017); Suggestions for a shake-up of the civil courts, such as establishing an online court (seems probable though still a recommendation); Even the possibility of redrafting the CPR. All mark ongoing shifts across disputes practice......
UK GDPR claim This Practice Note sets out advice on responding to a ‘ UK GDPR claim’. It refers to the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR), as revised by the Data ( Use and Access) Act 2025 ( DUAA 2025), alongside the Data Protection Act 2018 ( DPA 2018). Claims falling within EU jurisdiction are governed by the EU’s General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR). UK data protection legislation (notably Assimilated Regulation ( EU) 2016/679 ( UK GDPR)) originates to a great extent from EEA regimes and so rests on comparable principles, albeit with some granular divergences in its provisions. Moreover, in the UK, ‘assimilated law’ denotes retained EU law ( REUL) that continued to apply beyond the close of 2023, including the UK GDPR....
This Practice Note outlines how the ‘good arguable case’ threshold has developed as the gateway for the courts of England and Wales to assume jurisdiction over a claim. In the authorities, the standard has been variously described as: ‘good arguable case’ ‘the better argument’ ‘the much the better argument’ Courts have also applied glosses, provided explanations, and proposed reformulations of the original test. The evidential approach has been unsettled, with references to the need for material that is: ‘reliable’ ‘clear and precise’ ‘plausible’ ‘sufficient’ of ‘real substance’ For guidance on the requirement and how to satisfy it, see Practice Note: Cross-border service—‘good arguable case’ requirement. Origins of the ‘good arguable case’ requirement The leading modern authority on the meaning of ‘a good arguable case’ is the House of Lords decision in Vitkovice Horni a Hutni Tezirstvo v Korner (1951), which was...
On 6 April 2025, amendments to Part 25 of the Civil Procedure Rules ( CPR 25) took effect. For guidance on the revisions to Part 25 and Practice Directions 25A and 25B, see Q& A: Where can I find information on the changes to Part 25 coming into force on 6 April 2025? This Practice Note examines injunctive and declaratory remedies in cross-border proceedings. The relief considered includes: freezing injunctions (including proprietary freezing injunctions) anti-suit injunctions preservation orders imaging orders declarations/declaratory relief (including negative declarations and declarations that may affect foreign proceedings) Alongside the points set out here, the general rules for injunctive and declaratory relief remain applicable. For guidance, see: Interim and final injunctions—overview. Freezing injunctions A freezing injunction or order (previously known as a Mareva injunction, a term appearing in older authorities) is an interim measure restraining the respondent from dealing with or disposing of assets in a manner...
ARCHIVED: this Practice Note is archived, not kept up to date, and provided for background reference only. Moreover, some links may no longer point to the provisions as they stood on the date this Practice Note’s guidance was published. Key Part 36 cases 2016—what do you need to know? Although the updated Part 36 took effect a little over 18 months ago, intending to ease interpretative difficulties in a scheme designed to encourage settlement (and thereby save court time), problems under Part 36 remain. The position through 2016 is unchanged, with recurring issues continuing to arise despite the revisions......
This Practice Note sets out practical guidance on issuing and serving applications. It explains the appropriate forum for an application, the documents to lodge, how to submit the application, and payment of the relevant court fee. It also identifies who must effect service, what must be served, the timing for service, and the permitted methods. Further, it assists with interpreting and applying the pertinent CPR provisions. Depending on the court handling your case, you may need to observe additional requirements—see the section Court specific guidance below. Alternative provisions apply if your case proceeds within a County Court online claims pilot—see: Starting and managing online claims—overview. In which court should I file my application? Once you have concluded that an application is appropriate (see Practice Note: Pre-application considerations), the next step is deciding the correct court in which to make it. This choice matters...
ARCHIVED: This Practice Note is archived, not maintained, and supplied for background reference only. In addition, some links may no longer direct you to the provisions as at the date this guidance was published. For information on earlier and/or subsequent CPR amendments, see: CPR updates—overview and Procedure Rule Committee minutes—overview. Responses to the questions were given by: Lord Justice Briggs— The Deputy Head of Civil Justice Mr Justice Birss— Senior Court Judge Master Roberts— Senior Court Master Mr Edward Pepperall— Barrister at St Phillips Chambers who chaired the sub-committee on the Part 36 reforms Kate Wellington— Solicitor who is chairing the sub-committee on the Debt pre-action protocol Pre-action procedure for applying for interim payments Question Answer Interim payments are needed to deal with matters including, inter alia, rehabilitation; although the Rehabilitation Code sets out a process and encourages...
ARCHIVED: This Practice Note has been archived, is no longer updated, and is provided solely for reference purposes. Additionally, certain links might not take you to the provisions as they stood when the guidance in this Note was issued......
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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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