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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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The Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023) revises the framework created by the European Union ( Withdrawal) Act 2018. It substantially affects how what was retained EU law ( REUL) was classified and handled during 2021–23, which is now termed assimilated law. The Act also contains an array of mechanisms and powers enabling the ongoing amendment, repeal, and substitution of assimilated law over time. REUL( RR) A 2023—background REUL( RR) A 2023 came into force in part on 29 June 2023, with additional provisions commencing on 29 August 2023, and the balance commencing on appointment. For background reading on the passage......
This Practice Note outlines the obligations for serving an order, adhering to an order and understanding the meaning of court orders. It also addresses when a judgment or order becomes operative. Depending on the court dealing with your case, extra provisions may apply—see further below. This Practice Note should be read alongside Practice Note: Relief from sanctions—the courts’ approach. For guidance on changing, correcting or setting aside judgments and orders, refer to the following Practice Notes: Varying or revoking orders—court's general power under CPR 3.1(7) Judgments and orders—correcting accidental errors under the slip rule ( CPR 40.12) Judgments and orders—setting aside Amending judgments For assistance with preparing orders, see Practice Note: Judgments and orders—drafting and formalities— Drawing up orders. Serving court orders If a party drafts an order for filing by the court, they must provide sufficient copies for service on all...
CPR PD 51ZB This Practice Note reviews CPR PD 51ZB, covering a pilot designed to trial an online route for County Court damages actions in cases where each side is represented by a registered legal representative. Cases are administered through the Damages Claims Portal ( DCP), an online platform. The pilot operates from 28 May 2021 to 1 October 2026 ( CPR PD 51ZB, para 1.3). It forms part of the broader HM Courts and Tribunals Service ( HMCTS) reform programme; further details appear on GOV. UK— Modernising courts and tribunals: benefits of digital services. The DCP offers a complete, end‑to‑end digital pathway for handling eligible County Court damages claims. Also see the following Practice Notes: Online Civil Money Claims pilot scheme— CPR PD 51R—background on the Online Civil Money Claims ( OCMC) pilot, delivering an online route for County Court...
ARCHIVED: this Practice Note is archived, not updated, and provided solely for background reference. In addition, certain links may no longer lead to the provisions as they stood when the guidance in this Practice Note was issued. It should not be treated as current advice or actively maintained content, for background only. This note reviews developments during 2016 in the following areas: Costs precedents—new and updates Fixed costs reform Costs funding— ATE insurance and CFA success fees Costs assessment—bill of costs Solicitor and client costs Costs precedents—new and updates New costs precedent— Precedent R Precedent R is a report for budget discussions. It applies to proceedings in which the claim was issued on or after 6 April 2016 and where costs budgets are required. It was brought in to encourage parties to attempt agreement on the opponent’s costs budget. If...
This Practice Note sets out guidance on proving factual matters, including the status of witness statements. It also examines the approach to deploying factual evidence in later proceedings and the admissibility of factual findings from other tribunals. Witness immunity from suit is considered as well. Burden of proof Under English law, a party who alleges a particular fact that is not self‑evident must prove it ( Robins v National Trust, as cited in Ball v Ball). The courts have recognised that the character of the allegation bears on what is required to prove it: the more serious, or the less inherently likely, the fact alleged, the more cogent and persuasive the supporting evidence must be ( Ma v St George’s Healthcare NHS Trust at [11], cited in Serafin v Malkiewicz at [87]). The necessary proof does not have to be a witness statement from the party with the...
Expert determination is a type of alternative dispute resolution ( ADR). This Practice Note explains when an expert’s decision might be contested or set aside. For broader guidance on expert determination, including clauses, appointment and process, see Practice Note: Expert determination. For ADR more generally, see: ADR and dispute resolution clauses-overview. General principles As a general rule, the ability to challenge an expert determination is restricted. There is no statutory entitlement to appeal or otherwise contest an expert’s decision. As the expert’s power to decide stems entirely from the parties’ agreement, the courts will turn to that agreement to assess whether the determination can be challenged ( Premier Telecom Communications Group v Webb-see News Analysis: Court of Appeal: expert valuations and mistakes of law ( Premier Telecom Communications Group v Webb)). Most agreements referring disputes to expert determination state that the expert’s decision is final and...
This Practice Note examines how unjust enrichment intersects with contractual claims, with a particular focus on the notion of a ‘failure of basis’ as an ‘unjust factor’ when identifying the constituent elements of an unjust enrichment claim. It should be read alongside Practice Note: Unjust enrichment—elements of the claim, which outlines the background to the law and the core requirements for proving such a claim. As that Practice Note makes clear, the guidance here is intended to give a high-level orientation to a notably complex area of jurisprudence... The relationship between unjust enrichment and contracts Claims in restitution for unjust enrichment are distinct from contractual causes of action. The general rule is that, where the claimant and defendant are bound by contract, the agreement governs their rights and obligations, including the allocation of risk, until the contract is discharged or avoided (a question for...
This Practice Note examines the circumstances in which, under CPR 17, a bid to amend a statement of case is treated as late or very late, and the court’s method for addressing such requests. It further addresses how one should respond to an application of this kind. It ought to be read alongside the following Practice Notes: Amending a statement of case—introduction; Amending a statement of case—permission to amend; Amending a statement of case—logistics of effecting an amendment; Amending a statement of case—cost implications; Late amendments to statements of case—illustrative decisions. When is an application to amend a statement of case considered to be ‘late’?......
This Practice Note This Practice Note examines the deemed authenticity of disclosed documents under CPR 32.19, the allocation of the burden of proving a document’s authenticity, when to serve a notice to prove and how this may affect a claim, as well as the civil courts’ approach to authenticity. This Practice Note should be read alongside: Disclosure—overview Inspection—overview Disclosure—technical glossary Under CPR 31, a party is taken to admit the authenticity of a document that has been disclosed unless the party seeking to dispute it serves a notice under CPR 32.19. That notice signifies that the challenger requires the disclosing party to establish the document’s legitimacy at trial. If no notice is given, but the party disputing authenticity nevertheless cross-examines a witness called by the disclosing party about the document, complications may arise regarding the deemed admission. In practice, the courts adopt a...
This Practice Note should be read alongside the following Practice Notes: Amending a statement of case—introduction; Amending a statement of case—permission to amend; Amending a statement of case—cost implications; and Late amendments to statements of case—the court’s approach. The table highlights sample decisions on CPR 17 applications to amend statements of case that were treated as late or very late, and outlines the court’s response to such bids to amend... Examples of judicial approach to 'late' and 'very late' amendments Gambrill v NG Bailey Facilities Services Ltd [2026] EWHC 667 ( KB), 20 March 2026: the applicant sought to introduce amendments six weeks before trial. The court applied the accepted principles on late amendments (which the parties did not dispute), drawing on CIP Properties ( AIPT) Ltd v Galliford Try Infrastructure Ltd ( No 3) [2015] EWHC 1345 ( TCC) at paragraph [19] of the...
This Practice Note This Practice Note explores the reasons and timing for parties to use alternative dispute resolution ( ADR) to settle civil disputes, both at the pre-action stage and after proceedings have started, and does so to help parties assess suitability. It also looks at the court’s powers under the Civil Procedure Rules ( CPR) to prompt or direct parties to engage with ADR, and the court’s capacity to stay proceedings so they can try to resolve matters through ADR. Additional provisions may apply, depending on the court dealing with your case, and should be kept in mind. For more detail, see: Court specific guidance. For guidance on the courts’ powers to impose costs sanctions where a party breaches an order for ADR or unreasonably declines to participate in ADR, see the Practice Notes: Costs consequences of refusing to consider ADR in civil...
Fixed costs determination—what is it and when does it apply? This Practice Note explains fixed costs determination, clarifying what it involves and the circumstances in which it applies. It also covers Precedent U, how it is to be completed, and provides guidance on summary determination once the hearing has finished. Note: this Practice Note sets out the rules taking effect on 1 October 2024 in relation to fixed costs determination. Fixed costs determination is an assessment procedure for resolving costs disputes in fixed costs cases, effective from 1 October 2024. It is designed to provide a streamlined mechanism to address such disputes on the papers, removing the need for a hearing. CPR 36 ( Part 36 offers) does not apply to any fixed costs determination ( CPR 45.66). Parties may, however, choose to make settlement offers outside Part 36. Under CPR...
ESG for dispute resolution lawyers—overview Environmental, social and governance ( ESG) considerations cut across numerous facets of a client’s operations and conduct. Many touchpoints are sectoral or subject-specific—such as investment or trade supplies—and any one may generate litigation exposure. Disputes practitioners must, therefore, understand the breadth of ESG matters affecting their clients, and be alert to issues on which colleagues are advising. This subtopic offers guidance tailored to dispute resolution lawyers... Alongside this, our ESG and sustainability collection is designed to support advisers to business with a rounded view of the far-reaching ESG landscape, coupled with detailed, practical direction on how these themes play out in an entity’s activities, together with associated risks and opportunities. The collection provides ESG and sustainability practical guidance relating to: competition digital transformation employment energy efficiency environment finance financial services and asset...
Fraud—what is it? Fraud is best understood as the purposeful use of deceit, misrepresentation or dishonest behaviour to deprive, to obtain a benefit or edge for a person or entity, or to inflict a loss on another (most often financial). That said, even when dishonesty lies at the heart of events, seeking a civil remedy does not always require proving dishonesty against some or all of those involved. The meaning of fraud differs between civil and criminal settings, and within each area the definition varies according to the particular claim or offence advanced. Fraud is committed by an individual, who may or may not be acting for a company. In any event, the consequences can be substantial for any business linked to that person, as well as for the victims of the fraud, whether private or corporate. Below are examples of...
This Practice Note addresses the initial issue to consider when confronted with a prospective negligence claim—whether a duty of care exists between the claimant and the defendant so that, if that duty is breached, liability may arise. For analysis of what may then constitute a breach, see Practice Note: Negligence—when is the duty of care breached? For specific guidance on banks and the duty of care, see Practice Note: Negligence—banks and the duty of care. For specific guidance on breach of statutory duty, see Practice Note: Negligence—breach of statutory duty. For specific guidance in professional negligence claims, see: Professional negligence claims—overview, including Practice Note: Bringing a professional negligence claim based on the duty in contract, tort and equity. Duty of care—what are the requirements to establish a duty of care? The tort of negligence fixes liability for loss or injury arising from a want of care. Two core...
This Practice Note offers direction on selecting the most suitable method of alternative dispute resolution ( ADR) for settling a civil dispute. It ought to be read alongside Practice Note: What is ADR?, which reviews the principal types of ADR and their respective similarities and differences. For details on the parties’ duties to contemplate ADR and the courts’ authority to direct or prompt consideration of ADR, both before and during any litigation, see Practice Note: Court powers to order or encourage ADR in civil proceedings. Forms of ADR Mediation is among the best known and most widely recognised ADR processes, yet it may not deliver the most effective outcome in every dispute, and it will not always be the suitable choice for a dispute. If the parties choose to pursue ADR, or the court so orders, they retain control over the type of ADR they adopt,...
Express and implied contractual terms distinguished Contractual terms may be either express or implied: Express terms—provisions set out in a written contract or clearly stated in an oral agreement at the point of formation (and they may comprise a combination of written and spoken terms) Implied terms—provisions not expressly stated but read in ‘by implication’ to reflect the parties’ intentions when the contract was made Terms may be implied by fact, by law, or by custom. For guidance on implying terms into contracts, see the following Practice Notes: Contract interpretation—terms implied by fact Contract interpretation—terms implied by law Contract interpretation—terms implied by custom and usage Issues with express contractual terms Even where terms are expressly agreed, issues can arise as to: incorporation—what has actually been included as an express term of the contract, and construction or...
Practice Note This Practice Note gives a high-level outline of the County Court’s online claims services—the Damages claims portal ( DCP) under CPR PD 51ZB and the Online Civil Money Claims pilot ( OCMC) under CPR PD 51R. It addresses which claims can be issued and managed through these services and the main eligibility criteria. It also summarises the essential requirements for using the services as set out in the CPR and the guidance produced by HM Courts and Tribunals Service ( HMCTS). For full information on how the DCP and OCMC operate and their eligibility rules, read this Practice Note alongside: Damages claims pilot scheme— CPR PD 51ZB Online Civil Money Claims pilot scheme— CPR PD 51R For a summary of the key resources available for the online claims services, see Practice Note: Online County Court money claims—key resources and contact...
This Practice Note reviews the present position on adjudication for debt in Scottish civil proceedings under the Bankruptcy and Diligence etc ( Scotland) Act 2007 ( BD( S) A 2007). For commentary on likely changes, see Adjudication for debt—anticipated future developments, below. For guidance on: other forms of diligence in Scottish civil procedure, see Practice Note: Enforcement in Scottish civil litigation, which in turn links to detailed guidance on a number of forms of diligence available in Scotland the equivalent in England and Wales, see Introduction to enforcement—overview which, as well as outlining the topic, links through 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, alongside an overview, links to more detailed guidance on aspects of cross-border...
From 1 October 2020, the process for pursuing a contempt application changed significantly. CPR 81 was extensively revised and Practice Direction 81 was revoked in full. This Practice Note concentrates on decisions handed down after that date. Ensuring your client appreciates the need to comply with court rules (including when signing a statement of truth) and to obey court orders—and the severe consequences if they do not—is underscored by the many cases in which contempt proceedings under CPR 81 (also called ‘committal proceedings’) have been brought against parties, whether individuals or companies, for non-compliance. The table below highlights committal cases addressing: procedural irregularities in the application process evidential standards jurisdiction and service issues sentencing issues Case details and analysis Nature of contempt alleged Summary of decision and details of any sentencing imposed Hails v Lawton (in his capacity as the Executor of the Estate of...
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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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