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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 has been archived and is not maintained. This Practice Note reviews the approach to the recognition and enforcement of judgments as it will operate from the UK’s exit from the EU on 31 January 2020 through to the end of the implementation period, which the EU describes as the transition period. It explores whether that implementation period could be extended, evaluates if the enforcement framework under the Brussels regime—including Regulation ( EU) 1215/2012, Brussels I (recast)—is in force during the implementation period, as well as setting out the position after the implementation period concludes. For a quick reference Brexit research aid that answers key questions on Brexit and provides useful Brexit updates, research tips and resources, see: Brexit Bulletin—key updates, research tips and resources......
ARCHIVED: This Practice Note has been archived and is not maintained. Proposals from the UK and the EU on transitional arrangements for applicable law will be a pivotal concern for UK litigators. This Practice Note examines in detail how Brexit will influence the process of identifying the applicable law once the UK departs the EU. At present, that choice is governed by Regulation ( EC) 593/2008 ( Rome I) and Regulation ( EC) 864/2007 ( Rome II). The Note distils the respective positions of the UK and the EU and assesses the likely potential outcomes as the UK leaves the EU. It also flags issues that may surface on exit and considers potential alternative regimes that could support the determination of the applicable law. Finally, it addresses the drafting of an applicable law clause. Applicable law is sometimes described as the governing law. For...
Scope of Practice Note This Practice Note addressing breach of contract explores what can constitute a contractual breach, and the judicial approach to assessing it by carefully construing the parties’ obligations—embracing both the ‘principle of futility’ and the ‘prevention principle’. It also sets out, in particular, the available responses to breach, namely an express contractual power to terminate for breach, or termination at common law for repudiatory breach, together with contractual damages and any various statutory constraints upon the remedies and liabilities arising from breach of contract. Note: a breach of contract may (though not invariably) lead to the agreement being terminated or brought to an end. Yet there are numerous other mechanisms by which a contract may end besides breach, and other circumstances in which a contract can be treated as void or rescinded. For guidance on these topics, see the...
The point at which an agreement is concluded—absence of ‘subject to contract’ This Practice Note examines the issues that may arise in deciding when a binding settlement of a dispute has been reached, if at all. For guidance on enforcing settlement agreements, see Practice Notes: Enforcing settlement agreements concluded after proceedings have commenced and Enforcing a settlement agreement concluded pre-action. A settlement agreement is made where negotiations over disputed matters are followed by acceptance of an offer, supported by consideration, with an intention to create legal relations. To be contractually binding, the settlement must clearly show: acceptance of an offer—being the final and unequivocal assent to that offer assent that mirrors the terms proposed in the offer communication of that acceptance to the offeror Be alert to the risk of accepting an offer despite intending to continue negotiations. For help on avoiding this, see...
Class actions— Belgium— Q& A guide This Practice Note presents a Belgium-focused Q& A on class actions, issued within the Lexology Getting the Deal Through series by Law Business Research (law stated as at 6 October 2022). Authors: White & Case— Olivier Vanhulst; Nicolas Vande Velde; Julien Hislaire. Describe how the court system is arranged in relation to collective or representative proceedings (class actions). In which courts can such actions be filed? Relying on article XVII.35 of the Belgian Code of Economic Law ( BCEL) and article 633-ter of the Belgian Judicial Code, the Enterprise Court of Brussels and, on appeal, the Court of Appeal of Brussels, possess exclusive competence to hear class actions. A ruling of the Court of Appeal of Brussels may ultimately be brought before the Court of Cassation, though this remedy is confined to...
ARCHIVED: This Practice Note is archived and is not being maintained. NOTE: save where an appeal notice was filed, or permission to appeal obtained, before 1 October 2012, this Practice Note is for historical reference only. Moreover, the CPR rules and practice directions mentioned in this guidance link to the current provisions rather than those that applied before 1 October 2012. For the pre‑ October 2012 position, please refer to the attached PDF documents. CPR 52 (old) CPR PD 52 (old) Introduction The CPR sets out guidance on specialist appeals to the various divisions of the High Court. The procedure for such appeals differs slightly in each instance. This note signposts the sections of the practice direction to Part 52 that relate to those appeals. These provisions should be considered together with the general appeals procedure contained in CPR Part...
Archived: This Practice Note is kept solely for historical context and is no longer updated or maintained. It explains how applications were determined without a hearing (often called determination on the papers) under the rules in force before 1 October 2023. For guidance on determining applications on the papers under the rules from 1 October 2023, see Practice Note: Determination of an application without a hearing (on the papers). For broader guidance on making applications, see Practice Note: How to make an application for a court order ( CPR 23)... Preparation for a paper determination When the court considers an application suitable for decision on the papers under CPR 23.8: it will notify both the applicant and the respondent that the matter will be resolved on the papers ( CPR PD 23A, para 2.4) it may issue directions for the filing of...
This Practice Note is archived and retained for reference only, as the pilot scheme concluded on 31 March 2013. For further detail on costs budgeting, see: Costs budgeting and costs management—overview. What is this? The Commercial Court costs pilot scheme (the Scheme) was created to control the expense of proceedings in line with the overriding objective in CPR 1.1, with its provisions contained in CPR PD 51G. Parties were required to prepare a costs budget ( Costs Budget) before the first CMC and to keep it updated throughout the case. The court would then actively oversee the case’s costs in accordance with the overriding objective, approving or refusing any proposed amendments to the Costs Budget. Where appropriate, approval could be given by issuing a Costs Management Order. For a comparable costs control initiative in defamation claims, see Defamation costs pilot scheme [...
ARCHIVED: NOTE: SAVE FOR WHERE A DEFENCE HAS BEEN RECEIVED BEFORE 1 APRIL 2013, THIS PRACTICE NOTE IS FOR HISTORICAL PURPOSES ONLY. For guidance on the rules currently in force, refer to Practice Notes: Directions questionnaires and Case management—allocation—the different case management tracks. Changes since 1 April 2013 From 1 April 2013, allocation questionnaires were replaced by directions questionnaires wherever ‘a defence is received’ on or after that date. What remains uncertain is: whether ‘received’ refers to receipt by the court rather than by the other parties and/or whether ‘a defence’ signifies that, in claims with multiple defendants, the new provisions apply where any defendant files its defence on or after 1 April 2013, even if other defendants filed before then If you now need to deal with directions questionnaires instead of allocation questionnaires, see Practice Notes: Directions questionnaires and Case...
ARCHIVED: This Practice Note is archived, not kept up to date, and provided solely for background information purposes. Additionally, certain links might not lead directly to the provisions as they stood on the publication date of this Practice Note’s guidance. For details on earlier and/or later changes to the CPR, consult: CPR updates—overview and Procedure Rule Committee minutes—overview......
ARCHIVED This Practice Note is archived and no longer maintained. The procedural steps for bringing a contempt application were significantly overhauled with effect from 1 October 2020. Wide-ranging amendments to CPR 81 came into force and Practice Direction 81 was revoked in its entirety. The Note addresses cases decided under the former provisions that applied before 1 October 2020. Clients must appreciate the obligation to follow court rules (including when signing a statement of truth) and to comply with court orders, as the potential consequences of breach are severe. A substantial body of decisions demonstrates that contempt under CPR 81 (ie, committal proceedings) has been pursued against parties—both individuals and corporate entities—for failures to adhere to such rules and orders. The table below highlights a selection of committal cases addressing, among other matters: procedural irregularities in the application process evidential standards ...
ARCHIVED: This archived Practice Note sets out the position as at 1 April 2013 on implementing the Jackson Reforms. It is not maintained and is provided solely for background purposes. In addition, some links may no longer direct you to the provisions as they appeared when this guidance was published. For further information on earlier and/or later amendments to the CPR, see: Practice Note: Jackson Reforms—one year on [ Archived] CPR updates—overview Procedure Rule Committee minutes—overview New costs rules and practice directions A comprehensive review of the costs rules and practice directions was carried out by a subcommittee of the CPR Committee. The removal of rules concerning funding agreements required renumbering, so from 1 April 2013 costs are addressed in Parts 44–47 rather than Parts 43–48 as before. The costs practice direction has also been reorganised so there is now a separate...
This Practice Note This Practice Note examines how the courts of England and Wales ( English courts) apply foreign law when resolving disputes, explaining what ‘foreign law’ means and its relevance within English proceedings. the date at which it must be ascertained, that, in the English courts, foreign law is a question of fact, the obligation to plead any relied‑upon foreign law, the effect of foreign law on disclosure, adducing expert evidence of foreign law, the influence of foreign law when assessing interest, its impact on summary judgment or strike out applications, and case management considerations. Note that many of these issues may not apply elsewhere. In some jurisdictions, foreign law is regarded as law rather than fact, or the court may apply it without a party pleading it in their statements of case. If...
Note, this Practice Note provides guidance solely on appealing the decision of an authorised court officer in detailed assessment proceedings. It does not address appeals from a detailed assessment conducted by a costs judge or a district judge. Appeals from judges are governed by CPR 52 ( Appeals). What is the process for appeals in detailed assessment proceedings? The destination of appeals is prescribed by the Access to Justice Act 1999 ( Destination of Appeals) Order 2016, SI 2016/917 ( CPR PD 47, para 20.1). The procedure differs depending on whether the decision-maker was an authorised court officer or a judge: authorised court officer—any party may appeal a decision made in detailed assessment proceedings ( CPR 47.21) these appeals are dealt with under CPR 47.21– CPR 47.24 and CPR PD 47, para 20.1– CPR PD 47, para...
This Practice Note considers the ‘e Disclosure Protocol’, whose second edition was released on 9 January 2015, and concerns the relevant disclosure of electronic documents in cases heard in the Technology and Construction Court ( TCC). It explores its layout, the issues and guidance it contains, together with certain key practical considerations. Note 1 : the e Disclosure Protocol pre-dates CPR PD 57AD (in force from 1 October 2022) which governs disclosure in many claims in the TCC. It sets out separate procedures for managing e-disclosure in such cases that are different from those discussed within the e Disclosure Protocol. In many circumstances the provisions of CPR PD 57AD build upon and prescribe more elaborate requirements than the processes described in the e Disclosure Protocol. Public procurement claims and Part 8 claims are not subject to CPR PD 57AD (see paras 1.4(2) and 1.4(7)...
ARCHIVED: This archived Practice Note sets out key dispute resolution ( DR) appeals or notable appellate court rulings in the sphere of general civil litigation in England and Wales from 2023 to the present, and highlights significant pending appeal matters (to support horizon scanning) alongside reported decisions handed down by the Supreme Court, Court of Appeal, Competition Appeal Tribunal, Judicial Committee of the Privy Council (the Privy Council), Court of Justice of the European Union ( Court of Justice) and the European Court of Human Rights ( ECt HR). Links are provided to each judgment and any bespoke News Analysis to aid comprehension of the principles addressed in the decisions and the impact of those rulings. This Practice Note comprises two elements designed to help dispute resolution practitioners stay current with developments in case law that affect their practice area, or that bear upon civil...
This Tracker helps you determine whether a state is a signatory to the Hague Convention on Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (the Hague Judgments Convention), and whether the convention is already operative for that state. It also summarises the work of the Hague Convention on Private International Law ( HCCH) leading up to the convention’s adoption. Note that the convention took effect on 1 September 2023 for the EU and Ukraine. For guidance, see Practice Note: Hague Judgments Convention— Entry into force of the convention. UK and the convention For the UK, the convention began to apply on 1 July 2025, being the first day of the month after the lapse of 12 months from ratification ( Article 28 of the Hague Judgments Convention); the UK ratified on 27 June 2024—see HCCH website: status table. At the outset, the...
This Practice Note examines the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (the ). The convention establishes a framework for enforcing international civil or commercial judgments. The Note outlines the convention’s background, its status, and the date on which it took effect. It then sets out the convention’s scope ( Articles 1–3), together with the pathways for recognising judgments ( Articles 4–7). It next addresses interpretation and application, including procedure and costs ( Articles 8–15), and concludes with the general clauses on declarations, the convention’s operation in non-unified systems, and its relationship with other international instruments. For the text of this convention and other documents... Definitions applicant—a party applying for recognition or enforcement under the convention Hague Choice of Court Convention— HCCH Convention of 30 June 2005 on Choice of Court...
ARCHIVED: This Practice Note has been archived and is not maintained. It outlines the most notable developments in litigation and case management during 2019. The table below highlights procedural changes, including pilot schemes and amendments to the Civil Procedure Rules (with consultations on proposed revisions). For guidance on the likely implications of the UK leaving the EU for dispute resolution practitioners, see Practice Note: Brexit implementation period—considerations for dispute resolution practitioners [ Archived]. For other key developments for general dispute resolution practitioners, see Practice Note: Key DR cases, reforms and trackers—overview. Litigation—starting a claim The Courts and Tribunals ( Online Procedure) Bill [ HL] 2017–19 Status: As it did not complete its passage through Parliament before the session ended, this Bill will not proceed. For details, see News Analyses: Brexit Bulletin—key Bills fall away on prorogation of Parliament (part 2)— LNB News 09/10/2019 64, and Queen’s Speech may not be...
This Practice Note examines when, in civil proceedings, a court may infer what an uncalled witness would have said had they attended trial. It reviews decisions where such inferences were accepted and where they were declined, and describes the conditions that must be satisfied before the court will contemplate drawing any conclusion from the ‘missing evidence’. Proving an assertion An assertion pleaded in a statement of case is ordinarily proved by deploying documents disclosed in the proceedings, by oral testimony that endures cross-examination, or by using both routes. For more minor allegations, parties may rely on hearsay. Because it is not tested in cross-examination, hearsay generally attracts limited weight, which is a question for the trial judge. Judges favour documentary proof. They are alert to how memories can fade or be shaped by the litigation process, which is why...
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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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