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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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Practice Note This Practice Note examines the two rules used to decide which courts have jurisdiction to hear a dispute about immovable property. The two rules are, in substance, the counterpart of one another. They are the: ‘immovables rule’-an English legal principle that foreign courts have no jurisdiction over immovable property situated in England ‘ Moçambique rule’-applied to decide whether the courts of England and Wales ( English courts) have jurisdiction at common law to determine a dispute about property located in another jurisdiction What is the immovables rule? The ‘immovables rule’ is a distinct category of private international law within English law. Comparable rules, under different names, appear in several other national common law systems, for example Canada and the United States of America. What links these rules is their use in disputes involving rights to, or interests in, immovable property. The rules provide that such...
The tables below set out instances where courts have considered requests to adjourn interim hearings. For convenience, they are grouped into applications that succeeded and those that did not. For guidance on the overarching principles applied when an interim hearing adjournment is sought, see Practice Note: Adjourning interim hearings. For advice on applications to adjourn a trial, see Practice Note: Adjourning trial... Examples of successful adjournment applications EB Pension Fund v Froggatt [2024] EWHC 2721 ( Ch) Judgment date: 27 June 2024 Grounds: The court did not process a notice of change removing solicitors from the record, leaving the claimant without representation. The initial adjournment bid was refused without reasons and the order gave no indication an adjournment had been sought. The claimant...
Applications in the King’s Bench Division If your case is proceeding in the King’s Bench Division ( KBD), the King’s Bench Guide will govern any application you lodge. This Practice Note sets out practical guidance on applications in the KBD with citations to the pertinent parts of the King’s Bench Guide. Its focus is the step-by-step pathway for making an application in the KBD, beginning with pre-application considerations and continuing through to the point of serving the issued application. For guidance on other aspects of the applications procedure in the KBD, see the following Practice Notes: Preparing for an application hearing in the King’s Bench Division ( KBD) Determination of applications in the King’s Bench Division ( KBD) The following general point should be noted: The King’s Bench Guide provides practical information about proceedings in the KBD, but it is not a...
Practice Note Please read this Practice Note alongside Practice Note: Starting a professional negligence claim-a practical guide. It offers a set of worked illustrations of pleadings for the following: particulars of claim defendant request for further information defence and counterclaim reply and defence to counterclaim All of this is derived from a hypothetical dispute concerning Mr and Mrs Client’s acquisition of a property named Whiteacre, and their solicitors’ role in that purchase (the Solicitors) in relation to the entitlement to access and to use off-street parking adjoining Whiteacre, together with subsequent events. See also Practice Note: Starting a professional negligence claim-a practical guide- Professional negligence hypothetical claim scenario for context. These worked examples are not intended as Precedents. They do not attempt to capture every potential claim or defence that could conceivably be advanced on the hypothetical facts and are not presented as ‘the perfect pleading’. Rather, they should be read with the...
ARCHIVED : This archived Practice Note explored what leaving the EU meant for dispute resolution practitioners in Scotland. It now sets out the status of proceedings concerning civil and commercial disputes after the close of the Brexit implementation period on 31 December 2020. For the most part, the implications for Scotland are the same as for the remainder of the UK overall. Broadly, the consequences for Scotland mirror those across the wider UK, and this Note should be read alongside the fuller England and Wales guidance, see Practice Note: Brexit post implementation period-considerations for dispute resolution practitioners [ Archived]. The sections below outline how EU law and international Conventions apply within the UK, together with a synopsis of the Scottish position on applicable law, jurisdiction, cross-border process, and the recognition and enforcement of judgments. For guidance on principal topics in Scottish civil...
When applications can be determined without a hearing This Practice Note sets out when a court may decide applications without an oral hearing-often called paper applications or an application on the papers. It outlines which kinds of applications are apt for disposal without a hearing and describes the process for asking for a paper determination. It also gives guidance on reading and applying the relevant CPR provisions. Depending on the court where your case is progressing, you may need to consider extra requirements-see the section Court specific guidance below. The default position is that matters are heard orally in public ( CPR 39.2(1)). Even so, certain applications can be resolved entirely on the documents with no hearing at all. This is variously described as: determining an application on the papers application on the papers applications on documents orders without...
Civil justice reform: See our Practice Note: Civil justice reform in Scotland-virtual hearings and electronic submission of documents for guidance on the current rules and practice in the Scottish civil courts concerning virtual hearings and the electronic signing, transmission and lodging of documents. It outlines the procedures to follow for motions in the Court of Session, the Sheriff Appeal Court and sheriff courts. Discussion of sheriff court procedure is limited to the Ordinary Cause Rules (note that the OCR, Ch 15 procedure also applies to summary applications-see Rule 2.30 of the Summary Application Rules 1999). For sheriff court cases under the Summary Cause or Simple Procedure rules, practitioners should refer to Chapter 9 of the Summary Cause Rules 2002 (where the equivalent of motions are called ‘incidental applications’) and Part 9 of the Simple Procedure Rules 2016 (where the equivalents are termed ‘...
This Practice Note provides guidance on the interpretation and application of the relevant provisions of the CPR. The court handling your case may require attention to further provisions-see the section Court specific guidance below for more detail. Form N244 asks you to specify the judicial level required for your application. Accordingly, practitioners must recognise which calibre of judge ought to determine various applications. For help completing form N244, see Practice Note: The application notice-form N244. In choosing the proper judicial level, consider two connected factors: jurisdiction-the authority of that judge to make the order at all; and allocation-the way courts assign cases among judges who have jurisdiction Address jurisdiction first to ensure the application can properly be entertained. Only then consider allocation, so that the judge you propose aligns with the court's normal listing arrangements and established practices. This is expected and...
ARCHIVED This Practice Note is archived and is no longer maintained. It reviews the core provisions of the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters signed at Lugano on 30 October 2007 (the Lugano Convention 2007). It outlines the convention’s background, the circumstances in which it operates, and lists the states that are party to it. It also highlights how case law interpreting both the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters signed at Brussels on 27 September 1968 (the Brussels Convention) and Regulation ( EC) 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters ( Brussels I) assists in understanding the...
Civil justice reform See our Practice Note, Civil justice reform in Scotland-virtual hearings and electronic submission of documents, for guidance on the current rules and practice in the Scottish civil courts regarding virtual hearings and the electronic signing, transmission and lodging of documents. The Note introduces the Inner House of the Court of Session and examines its composition, jurisdiction, personnel and court rolls in detail as applicable. It sets out the principal kinds of appeal competent to the Inner House of the Court of Session and summarises the nature, time-limits and procedure for: each of the following: applications for a new civil jury trial appeals from the Sheriff Appeal Court statutory appeals appeals by way of stated case petitions to the nobile officium For detailed guidance on reclaiming motions, see Practice Note: Reclaiming motions in the Inner House of the Court of Session in Scotland and Procedural...
This Practice Note This Practice Note examines the remedies obtainable in a judicial review raised in Scotland. For guidance on: other aspects of judicial review in Scotland, see Practice Notes: Judicial review in Scotland Judicial review in Scotland-grounds of challenge Judicial review in Scotland-raising a claim Judicial review in Scotland-protective expenses orders issues to weigh before bringing a civil claim in a Scottish court, and how to commence and progress a civil claim in Scotland, see: Scottish DR: prescription and limitation-overview and Scottish DR: case management and evidence-overview respectively, which provide links to more detailed guidance other facets of Scottish civil litigation, see: Scottish DR: civil appeals and judicial...
This Practice Note provides an introduction to judicial review in Scotland For guidance on: further aspects of judicial review in Scotland, consult Practice Notes: grounds of challenge remedies raising a claim protective expenses orders other core areas of Scots law and procedure, see our Scotland collection judicial review in England and Wales, see, for example, Practice Notes: Judicial review-what it is and when it can be used and Judicial review-time limits and the pre-action protocol Key HRA 1998 - Human Rights Act 1998 RCS - Rules of the Court of Session 1994 SA 1998 - Scotland Act 1998 Judicial review is the mechanism by which the Scottish courts...
Civil justice reform See our Practice Note: Civil justice reform in Scotland-virtual hearings and electronic submission of documents for guidance on the current rules and practice in the Scottish civil courts concerning virtual hearings and the electronic signing, transmission and lodging of documents. This Practice Note examines protective expenses orders ( PEOs) in the setting of judicial review claims brought in Scotland. For guidance on: other aspects of judicial review in Scotland, see Practice Notes: Judicial review in Scotland, Judicial review in Scotland–grounds of challenge, Judicial review in Scotland-remedies and Judicial review in Scotland-raising a claim other key areas of Scottish law and procedure, see our Scotland collection, and the closest equivalent procedure in England and Wales, see Practice Note: Protective costs orders Key: PEO- Protective Expenses Order PPD- Public Participation Directive 2003/35/ EC RCS- Rules of the Court of...
This Practice Note addresses judicial review grounds of challenge in Scotland For guidance on: other aspects of judicial review in Scotland, see Practice Notes: Judicial review in Scotland; Judicial review in Scotland-remedies; Judicial review in Scotland-raising a claim; and Judicial review in Scotland-protective expenses orders other key areas of Scots law and procedure, consult our Scotland collection judicial review in England and Wales, see, for example, Practice Notes: Judicial review-what it is and when it can be used; and Judicial review-time limits and the pre-action protocol Key HRA 1998- Human Rights Act 1998 ECHR- European Convention on Human Rights ECt HR- European Court of Human Rights Principal grounds for challenge before the Scottish courts include: illegality irrationality procedural impropriety proportionality Each of these is outlined in greater detail...
This Practice Note outlines the principal provisions on alternative dispute resolution ( ADR) and negotiated dispute resolution ( NDR) set out in the various court guides for the different divisions of the High Court, including direction on early neutral evaluation ( ENE). Court guides Every division of the High Court publishes its own court guide, offering a general account of that court’s work and practice, along with practical material to be read with the Civil Procedure Rules ( CPR) to support effective management of proceedings in that court. These guides are not a replacement for the CPR; rather, they explain how the rules and practice directions are applied in those courts. Although they do not have the status of a Practice Direction and do not possess the force of law, parties are expected to adhere to them; failure to do so may influence how the court...
Brexit-dispute resolution- Q& As This Practice Note brings together Q& As on a broad set of issues arising from the UK’s exit from the EU that DR lawyers may find useful. From 1 January 2024, the term ‘retained EU law’ has been replaced by ‘assimilated law’ under section 5 of the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023). Any mention of retained EU law in these Q& As should now be understood as a reference to assimilated law and related concepts. For further detail, see Practice Note: Assimilated law. Impact of Brexit on English court claims and procedures 31/05/2023: Post‑ Brexit, how difficult is enforcing an English court judgment in Belgium, and what steps must be taken? This Q& A explains the alternative enforcement routes for an English judgment in Belgium, with the route depending on when the...
Practice Note This Practice Note explores how the UK’s exit from the EU affects the operation of the 2007 Lugano Convention in relation to recognising and enforcing judgments. In the UK, the position is governed by domestic legislation, which contains transitional measures. The convention’s parties comprise the EU, Denmark, and the EFTA states of Iceland, Norway and Switzerland; however, until 31 December 2020 at 11 pm, it operated between the UK and Iceland, Norway and Switzerland. It did not govern relations between the UK and EU Member States ( Denmark included), as EU regulations or specific agreements applied there. UK courts still apply Lugano where proceedings were begun on or before 31 December 2020 at 11 pm. Its application is sustained via the pertinent domestic statutes, incorporating transitional rules. Courts in Iceland, Norway and Switzerland no longer use Lugano to enforce an English...
This Practice Note examines how the UK’s departure from the EU affects the operation of Regulation ( EU) 1215/2012, Brussels I (recast), for recognising and enforcing judgments. It also reviews the relevant provisions of the UK– EU Withdrawal Agreement. Relevant domestic legislation is covered as well, including any transitional rules, together with the stance of the EU Commission. Where appropriate, consequences for Regulation ( EC) 44/2001, Brussels I, are identified. Practitioners should note that other enforcement frameworks are likewise influenced by the UK’s exit. For further guidance, see Practice Note: Brexit post implementation period-considerations for dispute resolution practitioners- Recognition and enforcement of judgments [ Archived]. Definitions This Practice Note uses several definitions: Civil Procedure Rules- CPR EU Commission notice to stakeholders dated 27 August 2020, titled: ‘ Withdrawal of the United Kingdom and EU rules in the field of Civil Justice and Private...
Scope of Practice Note This Practice Note offers a series of worked illustrations for pleading: particulars of claim defence reply They are set against a hypothetical dispute arising from a contract for the sale and delivery of blinds in a business-to-business setting. Owing to the nature of the claim, the Late Payment of Commercial Debts ( Interest) Act 1998 does not apply (see Practice Note: Late Payment of Commercial Debts ( Interest) Act 1998). These worked examples are not intended to function as Precedents. They do not encompass every possible claim or defence that might be open on the hypothetical facts and are not presented as ‘the perfect pleading’. Instead, they should be read with the generic statement of case Precedents linked to below and provide practical illustrations of how a hypothetical scenario can be pleaded in...
ARCHIVED: this Practice Note is for historical reference This note outlines the background and progression of electronic working in the courts, and summarises electronic working schemes that have concluded. For details on current electronic working arrangements, see: Electronic working pilot scheme under CPR PD 51O- Practice Notes: Electronic working and CE- File-when and where is CE- File applicable? and Electronic working and CE- File-how to use CE- File Electronic filing under CPR PD 5B- Practice Note: Electronic communication and filing of documents by email- CPR PD 5B County Court-certain County Court claims and applications can be issued and filed electronically-see Practice Notes: County Court money claims-how and where to issue and Where to issue County Court claims and Starting civil claims in the County Court Supreme Court- Practice Note: Supreme Court-general provisions and...
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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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