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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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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,...
This Practice Note brings together current judicial practice notes and guidance of relevance to Dispute Resolution practitioners, issued for the following courts: Chancery Division Commercial Court King’s Bench Division (excluding the Administrative Court and Planning Court) Business and Property Courts Senior Courts Costs Office Rolls Building It covers notes on electronic working, commencing a claim, hearings and trials, making applications, witness evidence, judgments and orders, and contempt of court. HM Courts and Tribunals Service ( HMCTS) issues a weekly operational summary offering users a weekly view of the service’s operational status. See also the @ HMCTSgovuk X account. For the guides of the individual specialist courts, see Practice Note: Court guides and other guidance. Court guidance on use of AI In 2023, the Courts and Tribunals Judiciary ( CTJ) published Artificial Intelligence ( AI)— Judicial Guidance to assist the...
This Practice Note considers: the regime established by the General Data Protection Regulation ( EU GDPR), Regulation ( EU) 2016/679 the UK iteration of the EU GDPR, retained in domestic law by the European Union ( Withdrawal) Act 2018 the Data Protection Act 2018 ( DPA 2018), which operates in tandem with the UK GDPR This Practice Note directs readers to resources on data protection — encompassing both the UK and EU GDPR regimes, the DPA 2018 and other relevant data protection measures — which may assist dispute resolution practitioners when handling litigation in England and Wales. Note: the UK was formerly bound by EU general data protection obligations, but this position changed at the close of the Brexit implementation period, namely 11 pm UK time on 31 December 2020. Understanding how Brexit affects this area is crucial. For guidance, see...
Although every litigation funding agreement ( LFA) and its accompanying papers will differ according to the funder and the nuances of the case being backed, there are core matters that must be tackled during the various stages of negotiation. This Practice Note forms part of a concise series by Tanya Lansky and Tets Ishikawa, Managing Directors of Lion Fish Group Ltd, designed to equip those negotiating or evaluating LFAs and their related documents with a clearer appreciation of the issues in play. Dispute resolution No party ever expects to rely on a dispute resolution clause in a commercial contract. Within the litigation funding sphere, most disagreements about the LFA are ordinarily sorted out between the participants. As a result, it is tempting to default to boilerplate wording submitting ‘to the exclusive jurisdiction of the courts of England and Wales’, or whatever the parties...
ARCHIVED: This Horizon scanner, archived as at 14 December 2023, reviews recent and forthcoming developments of interest to Dispute Resolution ( DR) lawyers. It records changes since the 3 October 2023 edition of the Horizon scanner: Dispute Resolution— Horizon scanner— October 2023 [ Archived]. Hot topic—court’s power to order parties to engage in a non-court based dispute resolution process In a seminal ruling, the Court of Appeal in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 marked a notable advance in the evolution of dispute resolution across England and Wales. Arising from the council’s stance towards claims alleging a failure to stop Japanese Knotweed migrating from its land into the garden of an adjacent private property, the case revisited the contested question of court-mandated dispute resolution mechanisms. The Court of Appeal clarified that the principles in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 are...
ARCHIVED: This archived Horizon scanner reviews recent and forthcoming developments of interest to Dispute Resolution ( DR) lawyers as at 21 February 2024. It covers changes since the 4 December 2023 edition of the Horizon scanner: Dispute Resolution— Horizon scanner— December 2023 [ Archived]. Hot topic— CPR and PD changes 1 February and 6 April Another round of CPR rules and Practice Direction ( PD) changes comes into force on Saturday, 6 April 2024, while 1 February 2024 saw changes to the Electronic Working Pilot Scheme. The CPR changes are set out in The Civil Procedure ( Amendment) Rules 2024, SI 2024/106. The principal changes concern: case management—there are modifications to Part 26 (the preliminary stage of case management) and Part 28 (fast and intermediate track) that introduce new provisions whilst also clarifying existing rules. There are also amendments to Part 31...
ARCHIVED: This archived Horizon scanner reviews recent and forthcoming developments of note for Dispute Resolution ( DR) practitioners as at 16 August 2023. It summarises updates since the 25 May 2023 issue of the Horizon scanner: Dispute Resolution— Horizon scanner— May 2023 [ Archived]. Hot topic— Litigation funding after PACCAR Michael Bundock, a barrister in the Lexis Nexis Dispute Resolution team, examines the Supreme Court’s decision in R (on the application of PACCAR Inc) v Competition Appeal Tribunal [2023] UKSC 28. The long-awaited judgment of the Supreme Court in PACCAR was delivered on 26 July. In a conclusion that surprised much of the funding market, the court determined that a litigation funding agreement entitling the funder to a return calculated by reference to any damages recovered is a Damages- Based Agreement ( DBA) within section 58AA of the Courts and Legal Services Act 1990 and the...
Many contracts include provisions on resolving disputes. At times these are simple terms stipulating litigation or possibly arbitration, sometimes also spelling out jurisdiction and the governing law. Yet a clause can instead prescribe other routes of alternative dispute resolution ( ADR) to be pursued should a dispute arise, offering an alternative to litigation or arbitration. Such provisions are often labelled ADR clauses. Parties have a number of options open to them (see below), and it is vital to appreciate the consequences of the drafting choices you make. This Practice Note reviews several clause formulations and evaluates the issues that may arise in relation to each category. The types of dispute resolution clause considered in this Practice Note are: litigation only clauses mediation clauses multi-tier clauses (escalation clauses) hybrid clauses carve-out clauses For guidance on the principal questions around the...
This Horizon scanner reviews recent and forthcoming developments of interest to Dispute Resolution ( DR) lawyers as at 14 June 2024. It reflects updates since the 21 February 2024 edition of the Horizon scanner: Dispute Resolution— Horizon scanner— February 2024 [ Archived]. Hot topic—effect of prorogation of Parliament on Bills affecting dispute resolution Following the calling of a General Election on 22 May 2024, Parliament was prorogued on 24 May 2024. Prorogation generally has the effect of extinguishing pending proceedings on public bills. The interval between the announcement of an election and prorogation is termed the wash-up period. During that interval (in this case, only two days) the government and the opposition agree non-controversial legislation that can be fast-tracked through the remaining Parliamentary stages and granted Royal Assent. Subject to any agreed carry-over, all other public bills then before Parliament fall. For details of the...
Tracker overview This Tracker highlights significant upcoming legislative changes of interest to dispute resolution lawyers, together with ongoing and recently closed consultations and other pertinent updates, enabling practitioners to follow and stay informed on recent and impending developments. To follow developments: for digital assets, including cryptoassets, see Practice Note: Tracker—cryptoassets for Dispute Resolution lawyers for artificial intelligence ( AI), see Practice Note: Tracker— AI for dispute resolution lawyers for alternative dispute resolution ( ADR), see Practice Note: Tracker— ADR developments For earlier developments, see Practice Notes: historic; and Brexit legislation tracker for dispute resolution practitioners [ Archived], which addresses legislative changes linked to the UK’s departure from the EU. Civil procedure Consultation The Online Procedure ( Core Rules and Pilot Schemes) Rules 2026 consultation Key dates: 4 December 2025–10 am on 15 January 2026 Details: Gov.uk opened a...
ARCHIVED: This Practice Note is no longer maintained and is provided solely for background reference. In addition, some links may not point to the provisions as they were at the time this guidance was published. This year’s annual round-up spotlights notable 2017 developments impacting general dispute resolution practitioners and looks ahead to what may emerge in 2018. Coverage includes: the civil court and the legal profession; substantive law and limitation; pre-action and initial considerations; issuing and progressing a civil claim; and the costs and financing of civil litigation. There are also updates on Lexis+® UK’s content, with news of major enhancements over the past year and what is scheduled for the next twelve months. Reviewing 2017 and previewing 2018 [ Archived] Once more, the year featured numerous changes with consequences for dispute resolution practitioners. As a result, we have separated our ‘annual round-up’ into the...
ARCHIVED This archived Practice Note is no longer maintained and is provided for background only. Moreover, some links may not take you to the provisions as they stood on the date this Practice Note’s guidance was published. This year’s annual round-up reviews notable developments from 2017 and signals what is coming in 2018. It covers: Supreme Court rulings in BPE Solicitors v Hughes- Holland and Tiuta v De Villiers on recovery of loss and the assessment of damages in professional negligence claims; Supreme Court decisions in Globalia v Fulton on mitigation, and Lowick Rose v Swynson concerning unjust enrichment and transferred loss; and From the High Court, an important judgment by Coulson J in Russell v Stone on limitation standstill agreements. Reviewing 2017 Professional negligence—recovering damages and the SAAMCO principle What happened? In BPE Solicitors v Hughes- Holland [2017] UKSC 21, the Supreme Court...
Introduction This Practice Note explains the disclosure obligations for matters assigned to the intermediate track, together with the relevant rules and guidance that apply where the claim form was issued on or after 1 October 2023. It does not purport to address claims governed by the Disclosure Scheme in the Business and Property Courts at all. For general introductory guidance on that scheme, see: Disclosure Scheme ( Business & Property Courts)—overview. For general guidance on disclosure in the other tracks, refer to the following Practice Notes listed below: Disclosure in the small claims track Disclosure in fast track cases Disclosure in multi-track cases The scope of a claim in the intermediate track The intermediate track was introduced from 1 October 2023 for disputes that are more involved than those suitable for the fast track, yet not so complex as to require...
This guidance addresses the collection and examination of electronic devices, raising issues such as identifying who controls a device and, where the controller is not the party to the litigation, whether they can be required to provide it to the litigating party. How data on a device is searched, and how it is assessed for disclosure in the case—versus protection by legal professional privilege or another exception—is vital. It also considers the rights of third parties in relation to data on such devices. Why devices are potentially important in disclosure In Pipia v BGEO Group Ltd, Mrs Justice Cockerill considered whether a personal mobile phone used by a witness who had been a senior executive at the defendant company should be searched to meet the defendant’s disclosure duties. She concluded that it could be, on the facts—see: Are any devices exempt from...
Introduction This Practice Note outlines the disclosure obligations for claims allocated to the fast track, and covers the rules and guidance where the claim form is issued on or after 1 October 2023, excluding personal injury and clinical negligence claims where different timetables apply. For general guidance on disclosure, see: Disclosure—overview. This Practice Note does not address claims governed by the Disclosure Scheme in the Business & Property Courts. For guidance on that scheme, see: Disclosure Scheme ( Business & Property Courts)—overview. For general guidance on disclosure in other tracks, see the following Practice Notes: Disclosure in the small claims track Disclosure in intermediate track cases Disclosure in multi-track cases The scope of a fast track claim The fast track provides a streamlined route for managing and taking lower value cases above the small claims ceiling to trial in the county court. Its...
ARCHIVED: This Practice Note examines the Jackson reforms to CPR 31.5 on disclosure that took effect on 1 April 2013. The reforms are intended to prompt the parties and the court, at an early point, to consider and decide the most suitable disclosure exercise for their case. Note: this Practice Note offers guidance only on the provisions brought in during April 2013. It does not give guidance on any subsequent procedural amendments (whether to the CPR or any other procedural rules). Nor does it address the implementation or interpretation of the April 2013 procedural updates, or any later updates. For guidance on the Jackson Reforms one year on, and on subsequent CPR updates, see Practice Note: Jackson Reforms—one year on [ Archived] and CPR updates—overview respectively. For information on disclosure after April 2013, see: Practice Note: Disclosure in multi-track cases. This covers the steps the...
This Practice Note charts the pivotal stages in the evolution of the legal status of digital and cryptoassets under English law, explaining why that status is significant and how it has been refined through decisions and reform proposals. The UKJT’s 2019 Legal Statement on Cryptoassets and Smart Contracts AA v Persons Unknown (2019), confirming digital assets can be property in English law and why that matters The step-by-step development of this proposition in subsequent case law The Law Commission Report and the Property ( Digital Assets etc) Bill D’ Aloia v Persons Unknown, the first post-trial judgment to address digital asset status For a primer on the technology and trading mechanisms, see Practice Note: Crypto and digital assets—what are they and how do they work? The UK Jurisdiction Taskforce report ( November 2019) A natural point of departure is the UKJT’s Legal...
Applications in the King’s Bench Division Where a case proceeds in the King’s Bench Division ( KBD), any application you make is governed by the King’s Bench Guide. This Practice Note offers direction on applications in the KBD by pointing to the relevant parts of the King’s Bench Guide. Its focus is on how the court determines applications in the KBD—either at a hearing or on the papers—rather than the steps for making an application or getting ready for an application hearing. For guidance on other elements of KBD application procedure, see: Making an application in the King’s Bench Division ( KBD) Preparing for an application hearing in the King’s Bench Division ( KBD) The following general points should be noted: The King’s Bench Guide provides practical material about KBD proceedings, but it is not a replacement for the CPR and must be read...
Relationships between the different applicable law regimes This Practice Note outlines the various applicable law frameworks that the courts in England and Wales may use. Which framework applies turns on whether the dispute is contractual or non-contractual, and on timing: the date the contract was concluded or, for a non-contractual claim, the date of the harmful event. Each framework contains intricate rules that the court must apply when identifying the governing law. In most matters, distinguishing between a contractual claim and a tortious claim will be straightforward. Where it is not, the crucial task is to analyse and classify the obligations in issue, i.e. whether they are ‘contractual’ or ‘non-contractual’. That characterisation then fixes the regime to be used. This can be outcome-determinative if the law identified under a contractual regime differs from that produced under a...
This Practice Note offers a concise outline of the principal considerations relating to detailed assessment. Use it as a starting guide and read it alongside the following Practice Notes, which provide fuller, more detailed coverage: Detailed assessment—what is it, who does it and where? Detailed assessment—commencement Detailed assessment—the hearing Detailed assessment—costs, settlement and agreement What is detailed assessment? A detailed assessment is the process by which the court decides what sum the paying party must pay the receiving party for litigation costs. It applies where the parties cannot reach agreement on costs and where a summary assessment is not suitable. For an introduction to summary assessment and the circumstances in which it is undertaken, see: Summary assessment—overview. The framework for detailed assessment is set out in CPR 47 and CPR PD 47. As a general rule, the costs of the proceedings (or any part of them) are not...
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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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