Featured documents
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:
Most recent Practice notes
This Practice Note explains how damages for dilapidations are addressed once a lease has come to an end, covering the common law approach, the statutory ceiling under both limbs of section 18(1) of the Landlord and Tenant Act 1927 ( LTA 1927), the principle of supersession, and procedural matters such as the Dilapidations Protocol. After the lease ends, the landlord cannot forfeit or depend on a Jervis v Harris clause. At that point, damages are the only remedy available and the recoverable amount is determined by: common law principles for assessing damages for breach of a repairing covenant; and section 18(1) of the LTA 1927, which restricts, and in some instances removes, the sum otherwise recoverable for disrepair (‘the statutory cap’) Damages—common law At common law, the measure of damages for disrepair is the reasonable cost of restoring the premises to the...
This Practice Note is concerned with the preparation of written pleadings in civil actions in Scotland. In Scotland, as in other legal systems, a party seeking to advance or oppose a civil claim must first reduce that claim or defence to writing. Such written statements make up the pleadings, and are often referred to as ‘writs’. There is no single, standardised form of pleadings used in every Scottish court. For historical reasons, the titles and formats of writs vary according to the court seized and the remedy pursued. Typical examples are: summons in the Court of Session— RCS, Ch 13 defences in the Court of Session— RCS, Ch 18 petitions in the Court of Session— RCS, Ch 14 initial writ under the Ordinary Cause Rules in the sheriff court— OCR, Rule 3.1 defences in the sheriff court— OCR, Rule 9.6 ...
Practice Note Produced in collaboration with Angharad Parry of Twenty Essex, this Practice Note is intended for use when identifying the governing law for contracts concluded between 17 December 2009 and 31 December 2020. For agreements made on other dates, the UK courts will apply an alternative applicable law regime. Which regime applies turns on the date the contract was concluded. For an overview of the regimes and how they interact, see Practice Note: Applicable law regimes. The Note sets out how Regulation ( EC) 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations ( Rome I) operates in practice. Within this Practice Note it is cited as Regulation ( EC) 593/2008, Rome I, or simply Rome I. It addresses the universal application rule ( Article 2) and the scope of the...
This Practice Note sets out guidance on the principles of privilege in Scotland. As the matter tends to crop up more often south of the border, many of the leading cases are opinions from the jurisdiction of England and Wales. For guidance on: specific points for Scottish disputes lawyers, see Practice Note: Legal professional privilege in Scottish civil litigation specific points for Scottish corporate crime lawyers, see Practice Note: Legal professional privilege in Scottish criminal proceedings the position in England and Wales, see Privilege and without prejudice communications—overview and Practice Note: Privilege—general principles, which, in addition to outlining this area, link to more detailed guidance on different aspects of legal professional privilege Confidentiality and legal professional privilege in Scotland The principle of privilege is not identical in English and Scots law. In Scotland, it is frequently termed...
This Practice Note sets out, in broad terms, the route for petitioning the court to obtain a winding-up order on the just and equitable ground. Depending on the court handling the matter, you may need to observe additional requirements—see the section below: Court specific guidance. For definitions and key expressions used in relation to a just and equitable winding-up petition, see Practice Note: Just and equitable winding-up—what it is and when to use it— Key terms encountered when applying for a winding-up on the just and equitable ground. Preliminary considerations The focus here is chiefly on procedure where a just and equitable winding-up petition is issued as a stand-alone claim. As this is comparatively uncommon, variations in approach between, and indeed within, courts may arise, for example when listing a petition for initial directions. A request to wind up a company on the just and...
Above all, be courteous to everyone at all times. Showing unfailing politeness to all concerned makes it difficult to go seriously wrong. The judge Ensure all mobiles are fully switched off before the judge arrives in court. Rise to your feet as the judge enters; the usher or the clerk will, in any event, remind you if you forget. Offer a bow when they reach the bench—their desk at the front of the court—and note that the judge will return the bow. You should also bow once more when they stand to leave the courtroom. At the beginning of proceedings, the judge will indicate when they are ready to hear from someone, and they usually invite the claimant’s advocate to go first. Addressing the judge For guidance on the correct forms of address for each level of the...
Introduction The strand of domestic law that originally arose from EU obligations and was captured by the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) as retained EU law ( REUL) is, from 2024, referred to as ‘assimilated law’. This change follows the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023). The new label signals notable shifts in the domestic standing and handling of assimilated law. Its objective is to advance the process of bringing former EU rules into the UK’s legal system and to support their reform... Reminder: what was retained EU law ( REUL)? To understand the move from REUL to assimilated law, it is useful to revisit REUL, which was established by EU( W) A 2018. For background on EU( W) A 2018, see Practice Note: Brexit—key legislation explained. After the Brexit...
Extension of time to serve the claim form This Practice Note offers guidance on applying to extend the deadline for serving the claim form. It addresses party agreement to an extension of time, pre‑application considerations, and the steps for pursuing an application under CPR 7.6. The Practice Note sets out the rules and authorities relevant to any application to extend time for service of the claim form, and also considers the defendant’s right to have the order set aside. The guidance provided is specific to the claim form. As set out by the Supreme Court in Barton v Wright Hassall (2018), the purpose of serving the claim form on the defendant is to bring the contents of the claim form to the defendant’s attention so that they know the case against them. To ensure the defendant receives timely notice of the case against them, the CPR...
This Practice Note sets out procedural and practical points specific to appeals taken to the UK Supreme Court from rulings of the Inner House of the Court of Session in Scotland. Where steps are identical to those for England and Wales, it signposts our civil appeals guidance for the Supreme Court, covering the parts of the process that likewise govern Scottish appeals. For guidance on: appeals to and in the Sheriff Appeal Court, refer to Practice Notes: Introduction to the Scottish Sheriff Appeal Court, Special incidental procedures in the Scottish Sheriff Appeal Court, Starting an appeal in the Scottish Sheriff Appeal Court and Chapter 7 procedure in the Scottish Sheriff Appeal Court appeals to and in the Inner House of the Court of Session, refer to Practice Notes: Appeals to the Inner House of the Court of Session in Scotland,...
This Practice Note provides guidance on when non-parties may access documents on the court file pursuant to the court’s inherent jurisdiction and CPR 5.4C. It explains the range of material a non-party or third party may obtain from the court, including statements of case, judgments and orders, further documents kept on the court file or stored within court records, and communications exchanged between the court and any party or other individual. Whether permission is required and the conditions that must be met to obtain access are addressed, including if granting access serves the interests of open justice, and the courts’ inherent jurisdiction to determine how that principle is exercised, as the court sees fit. It also outlines the steps and criteria for an application to view court documents and information, together with the mechanisms by which parties may curb access to...
This Practice Note explains the circumstances and procedure by which a defendant can advance a counterclaim or other ‘additional claim’ (including a claim for contribution or indemnity) against an existing party or a new party under CPR 20 and CPR PD 20, and considers whether it ought to be issued as a separate claim instead. It clarifies when the court’s permission is required, how to apply for that permission, and what must be provided with the application, including the evidence to be put forward. For general guidance on the contents, filing and service of the defence, see Practice Notes: Drafting the defence—formalities Drafting the defence—drafting tips Filing the defence Serving the defence For general guidance on drafting statements of case, see Practice Note: Drafting statements of case. What is an ‘additional claim’ and when might a party wish to make one? An ‘additional claim’ is ‘any claim other than the claim by the...
This Practice Note explores the availability of proprietary remedies (that is, remedies attaching to specific property, as opposed to a personal remedy, for example a damages claim) in the wake of rescission and rectification. Where a contract (or a gift) has been rescinded, or a contract has been rectified, one party may find themselves having incurred some loss as a consequence of the rescission or rectification. For example, when a contract is unwound the purpose is to restore the parties to the position they would have occupied as if the contract had never been made; yet, before rescission, property may have moved from one party to another, or to someone else. In that way, a claim in restitution may become available to deliver an appropriate form of relief. Such relief focuses on the property itself alone. What is...
Practice Note This Practice Note outlines the private rights of action ( PROA) available under the Financial Services and Markets Act 2000 ( FSMA 2000), enabling specified classes of individuals to bring claims against authorised firms where they have incurred loss in certain circumstances. The applicable statutory provisions appear in FSMA 2000, ss 20, 71 and 138D FSMA 2000, and are augmented by the Financial Services and Markets Act 2000 ( Rights of Action) Regulations 2001, SI 2001/2256 (the Rights of Action Regulations)......
This Practice Note outlines the key considerations when dealing with litigants in person ( LIP) in civil proceedings across interim applications, hearings and trial, including instances of non-attendance and remote hearings. It also covers the drafting and service of orders, consent orders, and other trial-stage matters such as applications to adjourn, preparation of trial bundles, handling of evidence, and the use of IT at trial. It offers guidance on interpreting and applying the relevant CPR provisions. It should be read alongside the following: Making an application and service—overview Determining interim applications—overview Trial—overview Judgments and orders—overview Depending on the court in which the case is progressing, additional requirements may arise—see: Court specific guidance. For broader guidance on litigants in person, see: Parties and their...
NOTE: This Practice Note is retained for historical reference only. It reviews charging orders under the regime operating before 6 April 2016, covering what charging orders are, when seeking one may be appropriate, and the jurisdiction concerned. If you intend to pursue a charging order on or after 6 April 2016, consult Practice Note: Charging orders—what are they and when to use them— CPR 73 and related content. For guidance on the process for obtaining a charging order (both interim and final), see Practice Note: Pre-6 April 2016— Obtaining interim charging orders and final charging orders—the procedure. This Practice Note cites the following legislation: Charging Orders Act 1979 as COA 1979 Tribunals, Courts and Enforcement Act 2007 as TCEA 2007 Partnership Act 1890 as PA 1890 Charging orders—the changes in force as from 6 April 2016 From 6 April 2016, the procedure for applying for interim and final...
This Practice Note explores forum non conveniens arguments when bringing an application to contest the court’s jurisdiction. Such a challenge may arise even where the courts of England and Wales have jurisdiction as of right—for example, where the claim form has been validly served within the jurisdiction—yet the defendant maintains the court ought to refuse jurisdiction because another court is the more appropriate forum to decide the dispute. This is resolved by applying the doctrine of forum non conveniens. For guidance on: the application of the doctrine in service applications, see Practice Note: Forum non conveniens—service out of the jurisdiction. This applies where the defendant disputes that there has been valid service of the claim form the principles of the doctrine, see Practice Note: Forum non conveniens—principles challenging court jurisdiction generally, see: Challenging court...
ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note reviews the court’s jurisdiction in cases involving multiple defendants. Under Article 6 of Brussels I, the courts of a Member State have special jurisdiction to determine a claim where the defendant is not domiciled in that forum, provided specified conditions are satisfied. It sets out those conditions and explains how the courts have applied them in real cases. In particular, it explores the concepts of ‘anchor defendants’ and ‘irreconcilable judgments’. Note: from 10 January 2015, Brussels I was repealed in its entirety and replaced by Brussels I (recast). Transitional measures are, however, in force. For details of those measures, and to assess whether the Brussels I rules continue to govern the matter you are handling, see Practice Note: E& W Brussels I...
ARCHIVED: This Practice Note is archived and is not maintained. It outlines the concept of parallel proceedings under Regulation ( EC) 44/2001, Brussels I, together with their impact on the courts tasked with handling these types of proceedings. The conditions for demonstrating that parallel proceedings exist are described in detail, and illustrations of how they have been applied in practice are provided. Note: since 10 January 2015 Brussels I was repealed in its entirety and replaced by Brussels I (recast). However, transitional arrangements have been put in place. For further details of those arrangements, and whether Brussels I provisions still govern the matter you are handling, see Practice Note: E& W Brussels I (recast)—application and exclusions. What are parallel proceedings? Parallel proceedings are: proceedings issued in two or more EU Member States the proceedings run at the same time, and the...
E& W Brussels I (recast)—the harmful event for specific tort and delict claims (art 7(2)) [ Archived] ARCHIVED: This Practice Note is archived and not maintained. This Practice Note examines the need for a harmful event to found a court’s special jurisdiction under Article 7(2) of Regulation 1215/2012, Brussels I (recast). It then outlines what qualifies as a harmful event for particular categories of claim: economic loss damaged or defective goods personal injury claims intellectual property claims claims for inducing breach of contract other categories of claim For guidance on the general principles relevant to tort and delict under the regulation, see Practice Note: E& W Brussels I (recast)—tort and delict claims (art 7(2)) [ Archived]. For guidance on contract claims under the regulation, see Practice Note: E& W Brussels I...
This Practice Note explains how to commence a claim for misuse of private information (a privacy claim) in England and Wales from 1 January 2021. It addresses: whether a claim exists and who may pursue it potential defendants and principal defences remedies limitation jurisdiction other issues on receiving instructions (interim relief, preservation of documents, alternative causes of action and alternatives to litigation) funding the claim pre-action conduct starting proceedings For more on the misuse of private information, see Practice Note: Privacy law—misuse of private information. For guidance on initial steps when confronted with a claim against your client for misuse of private information, see Practice Note: Responding to a claim for misuse of private information—a practical guide. Privacy claim—is there a claim? The first task is to determine whether your client has a viable claim. What must a...
Popular documents
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 ]...
Discover more from LexisNexis
