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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 updated, and provided for background information purposes only...
ARCHIVED This Practice Note is archived, not updated, and provided solely for background information purposes...
ARCHIVED This archived Practice Note is no longer maintained and is provided solely for background information. In addition, certain links may not lead to provisions as they existed on the date guidance in this Practice Note was originally released......
ARCHIVED: This Practice Note is archived and is no longer maintained. This Practice Note examines the effects on dispute resolution arising from temporary measures brought in due to coronavirus ( COVID-19), and related procedures too. It should be read alongside Practice Note: Coronavirus ( COVID-19) implications for dispute resolution [ Archived], and considered in parallel. It is intended to help dispute resolution practitioners grasp the rapid developments to civil court processes and procedures during this period, and how those shifts and the pandemic could affect their practice and particular matters in practice and day-to-day work. It includes civil court-specific guidance issued in response to the coronavirus outbreak, all of which is readily available for quick and consistent access via the ‘jump-links’ in the expandable contents table on the left-hand side of this Practice Note. As most court and tribunal buildings have reopened in...
This Practice Note on civil liability exposures linked to artificial intelligence ( AI) reviews and distils the following key topics: What is AI? the UK Jurisdiction Taskforce ( UKJT) legal statement on liability for harms caused by AI what civil liability risks arise from AI? who is exposed to a civil liability claim arising from AI use? who might bring a civil liability claim connected to AI use? mitigating the risk of AI-generated harms and losses AI use and the role of dispute resolution lawyers where to find further guidance and assistance The matters addressed in this Practice Note are confined to issues arising within the jurisdiction of England and Wales, though developments beyond that jurisdiction are noted. For guidance on AI in the EU, see: AI ( EU Law)—overview. What is AI? Although the term ‘ AI’ is used frequently, it spans a wide array of meanings. Accordingly, when discussing AI it should be...
Created in collaboration with 4 Pump Court, this Practice Note examines typical features of adjudication clauses in construction contracts, together with the adjudication processes set out in standard form construction contracts and widely used adjudication rules, such as the Scheme for Construction Contracts (the Scheme) and those issued by industry bodies. Adjudication clauses in construction contracts These clauses most often appear in construction agreements, principally because the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996) requires every construction contract to include a compliant adjudication procedure. If a contract omits compliant terms, the provisions of the Scheme for Construction Contracts (the Scheme) are implied (under HGCRA 1996, s 108(5)). Typically, an adjudication clause identifies the process or rules that will govern matters if either party elects to begin an adjudication—see Precedent: Adjudication...
What is third party litigation funding? Third party funding ( TPF) is now a significant element of the UK litigation landscape. This Practice Note addresses TPF obtained by a litigant under a litigation funding agreement ( LFA) with a commercial litigation funder, or another person who finances the case yet is not a party to the proceedings. A commercial funder’s objective is to invest for a prospective return, whereas a litigant typically seeks TPF either to pursue litigation they could not otherwise afford (thereby facilitating access to justice), or to manage their own financial exposure to the costs of bringing a case. Lord Justice Jackson, who led the 2010 Civil Litigation Costs Review, characterised TPF as funding provided by someone with no pre-existing interest in the dispute, commonly arranged on terms that: the funder is paid from any sums recovered as a result of the...
Although frequently seen in the setting of disputes, and thus litigation, set-off is fundamentally a matter of substantive law. This Practice Note identifies the principal factors for assessing whether a right to set-off exists, whether legal or equitable. It does not cover bankers’ set-off, insolvency set-off or the abatement of rent; for those, see: Are there different types of set-off? For guidance on pleading a right to set-off, see Practice Note: Pleading set-off. Are there different types of set-off? At its simplest, set-off may occur where two parties owe monetary sums to one another. There are five main forms of set-off: independent set-off (also called legal set-off or statutory set-off) transaction set-off (also called equitable set-off) contractual set-off insolvency set-off bankers’ set-off (sometimes referred to as current account set-off) Their core distinguishing features are outlined in Practice Note: Types of...
Practice Note This Practice Note consists of two strands created to help dispute resolution practitioners remain up to date with developments in case law that affect their field, or which influence civil litigation procedure more generally: selected forthcoming appeals to the Supreme Court are highlighted below; see Key forthcoming appeals to the Supreme Court—2022 summaries of significant appeal decisions in England and Wales (ie rulings of the Court of Appeal and Supreme Court and, where appropriate, certain judgments of the Competition Appeal Tribunal, Judicial Committee of the Privy Council, Court of Justice of the European Union), and ECt HR, which we have covered; see: Key forthcoming appeal cases—2022 You can navigate this content using the table of contents in the left-hand margin. Alternatively, search this tracker using [ CTRL]+[ F]. This material is not intended to be a...
ARCHIVED: this Practice Note is archived, not maintained, and provided for background only. Some links may not reflect the provisions as at the date this guidance was published. Judgment enforcement and contempt proceedings for those who disobey—what do you need to know? In 2016, changes—through revised and new CPR parts—altered how judgment debts are secured or enforced via charging orders and attachment of earnings applications. There was also a notable rise in the court’s use of contempt powers against those who ignore its orders. In this 2016 review, we consider: the updated route for applying for charging orders under amended CPR 73, effective from 6 April 2016—see below the new procedure for seeking an attachment of earnings order under CPR 89, in force from 6 April 2016—see below the court’s issue of a Senior Master’s Practice Note on the correct form to use when enforcing a land...
Court of Appeal—professional negligence ARCHIVED : This Practice Note has been archived and is not maintained. The Court of Appeal upheld an appeal in a claim against solicitors, holding that the loss of a chance head of damage was too remote. At first instance, the judge concluded that Lewis Silkin LLP had fallen below the required standard by not advising their client to include a jurisdiction provision in his employment agreement with a franchisee involved in the Indian Premier League’s Twenty20 competition. Because no jurisdiction clause appeared in the contract, when the client later issued proceedings against the franchisee over a severance entitlement, he faced jurisdictional challenges (ultimately dismissed) brought by the franchisee, which postponed his obtaining judgment for £10 million in severance. The client’s case was that, with proper advice on jurisdiction, the contract would have contained an exclusive...
What is subrogation? Subrogation is an equitable device designed to prevent unjust enrichment by allowing one party to step into another’s position and pursue a claim in that person’s name. For further guidance on unjust enrichment generally, see Practice Notes: Unjust enrichment—elements of the claim Unjust enrichment—defences When might subrogation arise? The term subrogation is a convenient description of a transfer of rights from one person to another, occurring by operation of law in a wide range of circumstances, and happening without assignment or the assent of the person from whom the rights pass. Some rights arising by subrogation have a contractual origin, as in the context of insurance contracts. Reflecting many differing situations recognised by the operation of law......
Defences There are several substantive defences to a defamation action and, since the Defamation Act 2013 ( DA 2013), most are now statutory. Multiple defences can be advanced together in answer to a claim. Truth Defamatory statements are presumed to be untrue, and the onus of proving their truth rests with the defendant. Showing that the substance of the defamatory statement is true is a complete defence. The defence formerly known as justification was given statutory effect by DA 2013, s 2; the common law defence was abolished and section 5 of the Defamation Act 1952 repealed. Pleading and procedural matters in defamation proceedings are governed by CPR PD 53B, which contains particular requirements for truth defences. CPR PD 53B replaced CPR PD 53 with effect from 1 October 2019 (see News Analyses: 109th practice direction update— July to October 2019 and New rules for media and...
This Practice Note explains the rules for serving documents—other than the claim form, particulars of claim or the defence—in proceedings in England and Wales. Examples include application notices, witness statements and court orders, eg interim charging orders. It covers permitted methods of service, deemed service, and applications to extend time. The rules are contained in Section III of Part 6, beginning at CPR 6.19. For guidance on service provisions for specific document types, see the following Practice Notes: Service in England and Wales—a guide for dispute resolution practitioners addressing service of the claim form Service of the particulars of claim Serving the defence Part 36 offers—service of an offer, notice of acceptance, variation or withdrawal Civil contempt proceedings—application considerations When serving documents: In Scotland or Northern Ireland, the document must be served by a method...
This Practice Note on multiple tortfeasors examines liability where a tortious claim involves more than one defendant or prospective defendant. It considers the same damage, same act (joint tortfeasor) concept, when directors may incur liability, accessory liability and knowledge in tort, and practical aspects of pleading such claims or preparing an agreement to settle them. For guidance on wider multi-party liability issues, see the following Practice Notes: Vicarious liability and multi-party torts Joint, several, and joint and several liability Contribution claims under Civil Liability ( Contribution) Act 1978 Settling disputes—claims involving three or more parties Multiple tortfeasors—the different categories of tortfeasor Where more than one tortfeasor (a party responsible for a tort) is involved, they may fall into these categories: joint tortfeasors: the parties answer for the same damage arising from the same tortious act several...
This Practice Note sets out, at a high level and in a table-style format, the core distinctions between arbitration and other forms of alternative dispute resolution ( ADR), namely: mediation, early neutral evaluation, adjudication and expert determination. Procedure Arbitration Mediation Early Neutral Evaluation Adjudication Expert Determination Flexibility Arbitration: Adaptable procedure with geographical mobility. See Practice Note: A quick guide to arbitration process. Mediation: Highly flexible; the process can be tailored on the day. Early Neutral Evaluation: Entirely flexible. Adjudication: Flexible, though parties usually agree certain exchanges of documents. Expert Determination: Flexible, though parties usually agree certain exchanges of documents. Delay Arbitration: Delays can arise, particularly when the tribunal is constituted and sometimes during the proceedings. These can be mitigated by agreement and active case management. A procedure for speedy judgment exists but depends on a robust tribunal. Mediation: Parties generally agree a specific mediation date and make appropriate...
CPR PD 5C (the CE- File electronic filing and case management system) took effect on 1 October 2025 and sets out the procedure for using CE- File in the Senior Courts Costs Office. Paragraph 1.5 of the Senior Courts Costs Office Guide explains electronic filing in that office and provides a link to the HMCTS e-filing service, which users must log in to in order to file documents electronically with the court. This Practice Note also signposts the Senior Costs Judge’s October 2019 Electronic Working in the Senior Courts Costs Office Practice Note. Although that document refers to CPR PD 51O, which has been revoked, much of the practical guidance remains relevant and useful to practitioners... Mandatory use of CE- Filing in the Costs Office—legally represented parties CE- File applies to the Senior Courts Costs Office ( CPR PD 5C, para 1.3(d)). A legally...
This Practice Note on construing contracts examines when material from pre-contract negotiations and statements may be relied upon to assist interpretation of the agreement. When advising on contractual construction, you should have regard to: the guiding principles applied by the court when interpreting the meaning of contracts, including the need to consider the background matrix of fact (also known as the factual matrix) and the commercial context in which agreements were made—see Practice Note: Contract interpretation—the guiding principles the rules (or ‘canons’) of construction used to help ascertain the sense of a written contract—see Practice Note: Rules of contract interpretation other aids to contractual interpretation such as the parol evidence rule—see Practice Note: The parol evidence rule in interpreting contracts the admissibility of surrounding documents as an aid to construing contracts—see Practice Note: Contract...
When weighing up whether, and in what way, to pursue a claim for judicial review, your opening task is to assess if that procedure is the suitable mechanism for resolving the issues presented by the matter before you. For additional help, see Practice Note: Judicial review—what it is and when it can be used. Time limits If judicial review is the route chosen, the next step will typically be to confirm there is still time to commence proceedings. Under CPR 54.5, claims for judicial review (apart from the three exceptions referred to below) must be issued promptly and, in any event, within three months of the date on which the grounds first arose. Promptness is an overriding requirement, and you should not assume a claim is in time merely because it is brought within three months. Accordingly, once the basis for the challenge has...
This Practice Note sets out how to interpret and apply the pertinent provisions of the CPR. Depending on the court in which your case is currently progressing, you should also take account of any further provisions—see: Court specific guidance. In particular, note that substantial parts of CPR 29 and CPR PD 29 (which concern multi-track case management and are cited in this Practice Note) do not operate in the Commercial Court (see CPR 58.13 and CPR PD 58, para 10.1), Circuit Commercial Courts (see CPR 59.11 and CPR PD 59, para 7.1) and the Technology and Construction Court (see CPR 60.6 and CPR PD 60, para 10). For details on case management in both the Commercial Court and the Technology and Construction Court, consult the following listed Practice Notes: Commercial Court— Commercial Court—case management Technology and Construction Court— TCC—case...
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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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