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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, not maintained, and provided solely for background information. Certain links may no longer point to the provisions as they stood on the date this guidance was issued. For details of earlier and/or later amendments to the CPR, see: CPR updates—overview and Procedure Rule Committee minutes—overview. Copies of both update documents, along with additional materials concerning the bill of costs, are available in the recommended documents section. When do the changes come into force? The two Making documents took effect on the following dates: 92nd update: 21 November 2017 93rd update: 22 November 2017 92nd update— Practice Direction 4 (forms) References to the ‘ Mercantile Court’ are replaced with ‘ Circuit Commercial Court’. Under Writs and Warrants, Form PF 93: Application for permission to issue a writ of possession (rule 83.13) is...
Archived : This Practice Note draws on provisions repealed on 1 April 2013 and is retained solely for historical reference purposes. Who determines the guideline hourly rates The Guideline Hourly Rates ( GHR) are at present set by the Master of the Rolls. From January 2013, this function will pass to the Civil Justice Council, and it is anticipated that a CJC sub-committee will be created to take on that responsibility. For information about the change, see the WMS from the MOJ here. Guideline hourly rates Solicitors may charge any hourly rate they choose for their services, but those amounts might not be recovered in full at a costs assessment. When considering the rates charged, the court will examine them alongside the GHR. The Senior Courts Costs Office publishes the Guide to the Summary Assessment of Costs (the Guide), which includes guideline hourly rates for...
ARCHIVED: this archived Practice Note is no longer being updated and is provided solely for background reference purposes only. In addition, some links may not take you directly to the provisions as they stood at the time the guidance in this Practice Note was issued. This year’s annual round-up surveys key developments in 2017 and looks ahead to what 2018 may bring on the horizon. It covers the launch of the new Business and Property Courts ( B& PCs) and the Briggs Report on the civil justice system and the online court, together with the principal CPR and court guide amendments, as well as considering issues arising from the UK’s exit from the EU. Reviewing 2017 Introduction of the Business and Property Courts What happened? The most notable alteration to the court system’s framework was the creation of the Business and Property Courts of England and Wales (...
E& W Brussels I (recast)—multiple defendants (art 8) [ Archived] ARCHIVED: This Practice Note has been archived and is no longer maintained. It examines Article 8 of Regulation ( EU) 1215/2012, Brussels I (recast), and the court’s jurisdiction in cases involving multiple defendants. Courts in an EU Member State have special jurisdiction to hear a claim where a co-defendant is not domiciled in that forum, provided particular conditions are met. This Practice Note analyses those conditions and the ways in which the courts have applied them in practice. In particular, it addresses the interpretation of ‘irreconcilable judgments’ and the role of ‘anchor defendants’. The three other circumstances falling under Article 8 of Regulation ( EU) 1215/2012, Brussels I (recast), are covered in Practice Note: E& W Brussels I (recast)—third parties, counterclaims and rights in rem (art 8) [ Archived]......
This Practice Note explores third party rights in relation to agreements under the Contracts ( Rights of Third Parties) Act 1999 ( C( RTP) A 1999). The Act introduces a statutory exception to the common law rule of privity of contract, enabling contracts within its reach to be enforced by third parties who are intended to benefit from them. This Practice Note does not deal with the Third Parties ( Rights Against Insurers) Act 2010... For the purposes of this Practice Note: A is the promisor and a party to the contract B is the promisee and a party to the contract C is the third party (and therefore not a party to the contract) Not a party but still affected by a contract Where your client is not a party to a contract, whether they may nonetheless be...
This Practice Note This Practice Note outlines the route to enforce an English court judgment abroad where the Brexit transitional provisions govern. It explains when those transitional rules apply and the steps required to secure enforcement. Any enforcement must follow the procedures in Old Part 74 and the old Practice Direction 74A as they stood on 31 December 2020. For fuller guidance on enforcing English court judgments: within the UK, namely Scotland or Northern Ireland, see Practice Note: Cross-border enforcement of English judgments—enforcing in Scotland or Northern Ireland outside the UK where the Brexit transitional provisions do not apply, see Practice Note: Cross-border enforcement—process to enforce English judgments overseas, to be read in light of the post- Brexit enforcement landscape, including the 2019 Hague Judgments Convention For targeted guidance on amendments to the CPR, including Part 74, see Practice Note: Brexit post...
ARCHIVED : This Practice Note is archived and no longer maintained. It is intended for mediations in which the transitional conditions in Article 69 of the Withdrawal Agreement between the UK and the EU were fulfilled on or before IP completion day (ie 31 December 2020, 11 pm), so that the mediation falls within the scope of the Mediation Directive 2008/52/ EC. For additional guidance on those transitional conditions, see Practice Note: Brexit post implementation period—considerations for dispute resolution practitioners [ Archived]— Mediation. Where those transitional conditions apply, UK domestic legislation provides for the continued operation of specified parts of the civil procedure rules that would otherwise have been revoked or amended as at 31 December 2020, at 11 pm, including the former Part 78 referred to throughout this Practice Note. For further guidance, see Practice Note: Brexit post...
This Practice Note focuses on enforcement in Scotland. For guidance on: the position in England and Wales, see Introduction to enforcement—overview, which not only provides a summary of the topic but also links to more detailed guidance on various aspects of domestic enforcement in England and Wales cross-border enforcement, see Practice Note: Cross-border enforcement—a guide for dispute resolution practitioners, which likewise offers an overview and directs you to further detailed guidance on the different elements of cross-border enforcement Court proceedings—value and jurisdiction Commercial disputes worth more than £100,000 can be raised in either the Court of Session or the sheriff court (section 39 of the Courts Reform ( Scotland) Act 2014 ( CR( S) A 2014)). Subject to limited exceptions, matters valued at up to £100,000 are restricted to the sheriff court ( CR( S) A 2014, s 39). For guidance on the civil court structure in...
This Practice Note, prepared with Phil Roberts of Clarke Willmott LLP, summarises the enforcement routes available to someone who has just obtained a County Court judgment for £4,000. For a visual overview, see: County Court judgment creditor—flowchart. What are your options to enforce a County Court judgment for £4,000? charging order—(see the Charging Orders Act 1979 ( COA 1979), CPR 73 and CPR PD 73) transfer the judgment to the High Court and obtain a writ of control ( CPR 83 and the Tribunals, Courts and Enforcement Act 2007 ( TCEA 2007)) warrant of control ( CPR 83, TCEA 2007, the Taking Control of Goods Regulations 2013, SI 2013/1894) attachment of earnings ( CPR 89 and the Attachment of Earnings Act 1971 ( At EA 1971)) third party debt order ( CPR 72) an order to obtain...
Disagreements in the energy arena can be highly intricate. Owing to project locations, the parties’ nationalities, and the choice of forum or governing law, many matters are inherently international and raise cross-border considerations. A single dispute may spring from multiple contracts and involve more than two participants. Often, governments or state-owned bodies are involved, adding another layer of difficulty. Given the breadth of this field, this Practice Note concentrates on practical considerations when commencing a claim and does not delve into specific substantive issues for any particular case. For an overview of the key points to consider, see: Starting a claim in an energy dispute—checklist. Energy disputes—examples and hypothetical scenario The types of disagreements that fall within the scope of energy disputes are extensive. Typical illustrations include: a dispute between parties to a joint operating agreement for an oil and gas field...
ARCHIVED: This Practice Note is no longer current and is not being updated. It explains the relevant provisions of Regulation ( EC) 44/2001, known as Brussels I, that must be considered when deciding which court has jurisdiction to hear and determine employment-related disputes. Note: since 10 January 2015, Brussels I has been repealed in full and substituted by Brussels I (recast). However, transitional arrangements remain in effect in certain cases. For details of those arrangements and to assess whether Brussels I continues to apply to the matter you are dealing with, see Practice Note: E& W Brussels I (recast)—application and exclusions. Individual contracts of employment— Section 5 Section 5 (arts 18–21) applies to the allocation of jurisdiction for disputes concerning individual contracts of employment (art 18(1)). Note: if a dispute falls within Section 5, and there are multiple defendants, the rule in art 6(1)...
Duty of fidelity Every employee owes their employer a duty of fidelity. This duty is often described as a duty of good faith or loyalty. Fidelity is a wide notion, comprising several more specific obligations, some of which overlap with each other and with the duty of trust and confidence (see Practice Note: The term of trust and confidence): to act honestly—the duty requires employees deal with their employer truthfully (refer to: Duty of fidelity—honesty, below) not to compete—during employment, employees must not work for a rival organisation, including one they have founded (see: Duty of fidelity—competition and Duty of fidelity— Preparation to compete, below) not to secure a secret profit—employees must not earn undisclosed profit and must hand over to the employer any sums obtained (see: Duty of fidelity—secret profit, below) to disclose...
Electronic disclosure This Practice Note addresses common queries about electronic disclosure, covering what it entails, a solicitor’s duties in respect of it, the practical steps required, how to plan costs, and the consequences of non-compliance. It should be read alongside the Practice Notes: Introduction to electronic disclosure and Disclosure—technical glossary. Electronic disclosure refers to the efficient handling of (typically extensive) stores of electronically stored information ( ESI), whether arising before proceedings or after issue. With ESI now pervasive across businesses and individuals, dispute lawyers must understand electronic disclosure and a legal representative’s responsibilities under CPR PD 31B. For additional guidance, consult the following Practice Notes: Disclosure in multi-track cases Case management—compliance This Practice Note does not address the disclosure scheme in the Business and Property Courts. Electronic disclosure will almost invariably be relevant to matters within that scheme; while the guidance here may assist, the...
This Practice Note explains what electronic disclosure means and outlines the core tasks involved when handling electronic, or e‑disclosure, namely planning, collaboration, identification, preservation, collection, review and disclosure. It also addresses the approach to e‑disclosure at trial. ‘ Electronic disclosure’ concerns the management of substantial volumes of electronically stored information ( ESI), arising in a pre‑action or post‑issue setting. A sound grasp of e‑documents, e‑disclosure and your duties under CPR PD 31B (where applicable) is vital. For guidance on these aspects of disclosure, see the following Practice Notes: Disclosure in multi-track cases Case management—compliance Note: This Practice Note does not address the disclosure scheme operating in the Business and Property Courts. For relevant guidance, see: Disclosure Scheme ( Business & Property Courts)—overview. Principal sources of information Key sources on the process are: CPR 31 Practice Direction 31B concerning electronic...
Read this Practice Note alongside Practice Note: Disclosure under CPR 31—introduction, or the Disclosure Scheme ( Business & Property Courts)—overview, according to the disclosure scheme operating in the court where the claim is being pursued (for further guidance, see: Which disclosure rules apply to my claim—flowchart?). Term Definition Artificial Intelligence ( AI) — a technological means that imitates human thought processes, producing either extractive (summarising) or generative (creating) outcomes. back-up tapes — tapes holding preserved data; termed ‘back-up’ because information is copied to them and kept as a contingency. Also covers any method where data is routinely captured and stored separately for risk management. See also incremental back-ups below. bit and byte — electronic information is measured in bits, indicating storage space. 8 bits = 1 byte. 1 byte approximates to one text character; 1024 bytes = 1...
ARCHIVED: This Tracker monitored the progress of introducing the new electronic bill of costs ( Precedent S), which came into effect on 6 April 2018. This Tracker is therefore for historical purposes only What is the ‘in force’ date? The electronic bill of costs took effect on Friday, 6 April 2018 for use on detailed assessment in both the Senior Court Costs Office ( SCCO) and the County Court. Postponement of the introduction of the new bill of costs in 2017 Debate at CPR Committee meetings throughout 2017 resulted in a postponement: May 2017—during the CPR Committee meeting it was noted that take-up of the pilot for the electronic bill had been limited (only three bills in electronic form). Nevertheless, the committee agreed the pilot should be made mandatory for bills submitted to the SCCO and widened to include the County Court, although this would require...
This Practice Note explores the duty of full and frank disclosure when making a without notice application for permission to serve proceedings outside England and Wales. It sets out the origins and rationale of the duty, contrasts its scope with other without notice remedies (such as freezing injunctions), and identifies what amounts to ‘material facts’ that must be revealed. It surveys leading authorities from The Hagen (1908) to recent decisions, noting the consequences of breach, the court’s discretion in cases of non-disclosure, and examples of orders being set aside or maintained. It also gives practical guidance on anticipating respondents’ points, dealing with new information that arises after an order is made, and ensuring even-handed presentation of evidence. This Practice Note should be read with Practice Note: Cross-border service—application for permission to serve outside England and Wales. Note: without notice...
Although every litigation funding agreement ( LFA), together with its ancillary papers, will differ according to the funder and the nuances of the funded matter being financed, there are core issues that must be addressed throughout the various negotiation stages of all litigation funding documentation. This Practice Note forms part of a series of short Practice Notes by Tanya Lansky and Tets Ishikawa, Managing Directors of Lion Fish Group Ltd, designed to give those negotiating and considering LFAs and their related documents a clearer grasp of the factors in play. Overriding objective Managing drawdown arrangements is an administrative task, often non-billed, and all too easily overlooked. Yet a well-defined drawdown procedure can conserve a substantial amount of time, costs and resources for all parties involved over the duration of an LFA. The principal objective of any drawdown process is to eliminate ambiguity and minimise...
This Practice Note gives high-level guidance on preparing a letter of claim. For more related material, including links to a selection of precedent letters of claim, see: Pre-action: general—overview Pre-action protocols—overview What is a letter of claim? A letter of claim—also known as a letter before action or pre-action letter—marks the opening step in litigation. It notifies the prospective defendant(s) that court proceedings are intended if the dispute is not resolved. Practically, it allows you to set out, with clarity, the grounds on which you say a claim arises and the actions the recipient should take to avoid formal proceedings, confined to remedies a court could award if the claim succeeded. A carefully crafted letter can, at times, prompt the other party to engage seriously and remove the need to issue proceedings. Failing that, it can frame the litigation that follows, so it should not be...
This Practice Note examines the difference between statements that are representations and those that are contractual terms, and identifies when a representation can carry legal consequences, whether as a collateral contract, promissory estoppel or a waiver, even where it is not incorporated into the written contract. For further guidance on the admissibility of pre-contract statements and representations when construing a contract’s meaning, see Practice Note: Contract interpretation—admissibility of pre-contractual negotiations and statements and related content. What are contractual terms? The terms of a contract set the existence and limits of the parties’ respective rights and duties to each other. A contractual term is a statement that constitutes a promise or undertaking and is incorporated as part of the contract. If a term is broken, the innocent party may bring a claim against the defaulting party for damages for breach of contract and, in some cases,...
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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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