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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:
Most recent Practice notes
E& W Brussels I (recast)—tort and delict claims (art 7(2)) [ Archived] ARCHIVED : This Practice Note has been archived and is not maintained. It outlines how tort and delict claims are handled under Article 7(2) of Regulation ( EU) 1215/2021, Brussels I (recast). It also examines the scope of tort and delict claims within Article 7(2) of Regulation 1215/2012, Brussels I (recast). The Note explains the approach to interpreting Article 7(2); a key element of that analysis is identifying the place where the harmful event happens in order to decide which court may assume jurisdiction. Core principles are described, alongside illustrative examples covering various categories of claim. The guidance is intended to assist jurisdictional assessments across differing factual situations. The Practice Note further addresses situations involving co-defendants, and the pursuit of a declaration that a party bears no liability in tort or delict. For...
E& W Brussels I (recast)—choice of court agreements (art 25) [ Archived] ARCHIVED: This Practice Note is archived and not maintained. It sets out the framework for choice of court agreements under Article 25 of Regulation ( EU) 1215/2012, Brussels I (recast). It addresses: derogation from the default jurisdiction regime situations where Article 25 of Regulation ( EU) 1215/2012, Brussels I (recast) is not engaged whether hybrid jurisdiction clauses are encompassed the impact on parties outside the EU the conditions for a valid choice of court agreement the nature of the hearing and the standard of proof required The Note also considers the operation of Article 25 in relation to the UK as a non‑ EU Member State (commonly referred to as a third state) after its withdrawal from the EU, subject to the...
E& W Brussels I (recast)—impact on arbitration [ Archived] ARCHIVED: This Practice Note is archived and is not maintained. The Note explores the effect on arbitration of the provisions in Regulation ( EU) 1215/2012, Brussels I (recast), in particular Article 1(2)(d) and Recital (12). After setting out the text of Recital (12), the Note analyses how these provisions differ from those previously contained in the predecessor instrument, Regulation ( EC) 44/2001, Brussels I. It then offers a number of worked examples to illustrate the practical consequences of these revisions when addressing a range of situations that feature an arbitration, for ease of reference. Impact of UK’s departure from the EU Following exit day (ie 31 January 2020), the UK became a third state for the purposes of Regulation ( EU) 1215/2012, Brussels I (recast). Under the transitional arrangements in the Withdrawal Agreement between the UK and the EU, the UK...
ARCHIVED: This Practice Note has been archived as it explains the changes to CPR 6 when Regulation ( EU) 1215/2012, Brussels I (recast) came into force in 2015. This Practice Note refers to the following: It outlines how the CPR expressly labels the EU regulations mentioned. Regulation ( EC) 44/2001, Brussels I. Under the CPR, this is described as the 'previous Judgments Regulation'. Regulation ( EU) 1215/2012, Brussels I (recast). Under the CPR, this is described as the ' Judgments Regulation'. Regulation definition For service-related provisions, the CPR’s definition of the Judgments Regulation was altered from: ‘the Judgments Regulation’ means Council Regulation ( EC) No......
E& W Brussels I—enforcement of judgments [ Archived] Archived: This Practice Note has been archived and is not maintained. It offers guidance on enforcing a judgment in the courts of England and Wales under Regulation ( EC) 44/2001 ( Brussels I). A judgment can be recognised and enforced under this regime only where proceedings were commenced before 10 January 2015. If this Practice Note is not applicable, see Which regime applies to enforce a foreign judgment?—checklist for assistance in identifying the correct enforcement regime. This Note explains the application of Regulation ( EC) 44/2001, Brussels I, when enforcing judgments involving EU Member States. It outlines the general enforcement rules and the enforcement procedure—obtaining a declaration of enforceability—and includes how to appeal a declaration of enforceability. It also describes the process for enforcing an EU judgment in England and Wales that requires a...
ARCHIVED : This Practice Note has been archived and is not maintained. This Practice Note outlines the approach to identifying court jurisdiction for proceedings issued in the courts of England and Wales on or before 31 December 2020 at 11 pm that involve Gibraltar, Aruba (an overseas territory of the Netherlands) and the French overseas territories. For proceedings concerning these territories begun after that date, whether the courts of England and Wales have jurisdiction is determined under CPR 6 and the common law. That assessment is undertaken either when asking the court for permission to serve the claim form outside the jurisdiction, or where the defendant challenges the court’s jurisdiction. For guidance, see the following Practice Notes: Cross-border service—is permission required to serve a defendant who is outside England and Wales? Determining whether the courts of England and Wales have...
ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note examines how Brexit affects the service of court papers within the EU when the UK leaves the EU. It reviews the present framework under Regulation ( EC) 1393/2007 (the Service Regulation), outlines the UK and EU stances respectively, and sketches probable scenarios on the basis of information available. It also looks at challenges that could surface on exit and the alternative regimes that might support service of judicial and extra-judicial documents within the EU when seeking to serve parties there. For insight into routes to a deal or no deal outcome, see the House of Commons Exiting the EU Committee report, The progress of the UK’s negotiations on EU withdrawal ( June to September 2018), paragraph [35], which includes a helpful...
ARCHIVED: This Practice Note is archived and no longer updated. It outlines modifications to the Civil Procedure Rules arising from the Civil Procedure Rules 1998 ( Amendment) ( EU Exit) Regulations 2019 ( SI 2019/521), and the Civil, Criminal and Family Justice ( Amendment) ( EU Exit) Regulations 2020 ( SI 2020/1493), together with related revisions to relevant practice directions recorded in the Making documents for the 107th, 122nd and 126th practice direction updates. The 126th practice direction update also introduced several minor amendments to the 107th practice direction. These adjustments either ensured, or flowed from, changes to existing EU Exit instruments so as to secure alignment with the Withdrawal Agreement between the EU and the UK. CPR Parts subject to change include: Part 5 Part 6 Part 8 Part 12 Part 13 Part 25 Part 30 Part 31 ...
ARCHIVED : This Practice Note is archived and no longer maintained. It reviews how the settlement rules apply 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 also examines whether that period can be extended, whether the settlement framework in the Mediation Directive 2008/52/ EC and the European Directive 2013/11/ EU on ADR operates during the implementation period, and the position thereafter. For a quick-reference Brexit research aid answering key Brexit questions and offering useful updates, research tips and resources, see: Brexit Bulletin—key updates, research tips and resources. Definitions This Practice Note uses a number of definitions: European Union ( Withdrawal) Act 2018— EU( W) A 2018 European Union ( Withdrawal Agreement) Act 2020— EU( WA) A 2020 exit day—defined in EU( W) A 2018, s...
ARCHIVED : This Practice Note has been archived and is not maintained. This Practice Note sets out guidance on the implementation period and its impact on EU law and UK legislation drawn from EU measures. It covers: Retained EU law—what it comprises and when it operates. The significance of Court of Justice rulings for UK courts throughout the implementation period. For context on the European institutions cited, see Practice Note: Structure and functions of EU institutions and bodies. For advice on the consequences of the implementation period’s conclusion, see Practice Note: Brexit post implementation period—considerations for dispute resolution practitioners. Brexit timeline For the latest on the Brexit process and related preparations, see Practice Note: Brexit timeline. Withdrawal Agreement 2020—implementation period The 2020 Withdrawal Agreement between the UK and the EU is dated 24 January 2020 and is available here......
Archived: This Practice Note lists News Analyses, covering the period 2016 to 31 January 2019 (exit day), covering a range of issues concerning the implications of Brexit for dispute resolution ( DR) lawyers. This Practice Note brings together News Analyses spanning 2016 to 31 January 2019 (exit day), examining varied Brexit implications for dispute resolution ( DR) practitioners. For analyses of developments after exit day, see Practice Notes: Dispute Resolution News Analysis— Brexit [ Archived]; Dispute Resolution News Analysis— Brexit (exit day to IP completion day) [ Archived]. For wider context on legal duties and the effects of Brexit, consult the Brexit collection, which signposts Practice Notes, Checklists and Q& As, alongside News Analysis and Legal Updates across multiple practice areas... 2020 up to 31 January 2020 (exit day) Date: 31/01/2020 News Analysis: UK...
ARCHIVED: This Practice Note has been archived and is not maintained. The UK and EU’s tailored proposals for allocating jurisdiction in disputes will be a central concern for UK practitioners. This Practice Note examines how Brexit will influence the identification of jurisdiction and the interpretation of choice of court agreements on the UK’s exit from the EU. It first explains the present regime under Regulation ( EU) 1215/2012, Brussels I (recast). It then outlines the respective approaches of the UK and the EU and weighs the likely outcomes, so far as the current information permits. The Practice Note highlights issues that may surface when the UK leaves the EU. It also reviews alternative frameworks that may assist with jurisdiction determinations, namely the Hague Convention on Choice of Court Agreements and the Lugano Convention 2007. Finally, it addresses the drafting of a...
ARCHIVED: This Practice Note examines how Brexit is set to affect cross‑border procedures once the UK leaves the EU. It reviews the existing legal framework for such processes under Regulation ( EC) 805/2004, the European regulation for uncontested claims, Regulation ( EC) 1896/2006, the European Payment Order Regulation, and Regulation ( EC) 861/2007, the European Small Claims Procedure Regulation. The Practice Note also outlines the respective stances of the UK and the EU, explores the probable outcomes that could follow the UK’s departure from the EU, and highlights possible alternative regimes that might offer support. For insight into how either a deal or no‑deal scenario might be reached, see the House of Commons Exiting the EU Committee report, The progress of the UK’s negotiations on EU withdrawal ( June to September 2018), which includes at para [35] a helpful...
ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note explores how Brexit may affect the determination and settlement of disputes through mediation or other forms of Alternative Dispute Resolution ( ADR) when the UK leaves the EU. It reviews the current position: the Mediation Directive 2008/52/ EC, implemented in England and Wales by the Cross- Border Mediation ( EU Directive) Regulations 2011, SI 2011/1133; and the relevant ADR directive, European Directive 2013/11/ EU on ADR, which amends Regulation ( EC) 2006/2004 and Directive 2009/22/ EC. That latter directive was transposed into the law of England and Wales by the ADR for Consumer Disputes ( Competent Authorities) Regulations 2015, SI 2015/542. The note then summarises the respective positions of the UK and the EU, considers likely potential outcomes arising on the UK’s exit from the EU, and...
ARCHIVED: This Practice Note has been archived and is not maintained This Practice Note explores how Brexit will affect securing evidence from an EU Member State for deployment in English court proceedings, and supplying evidence for use in cases before an EU Member State court when the UK leaves the EU. It reviews the present position under Regulation ( EC) 1206/2001, the Taking of Evidence Regulation, summarises the respective stances of the UK and the EU, and assesses the likely potential outcomes on the basis of the information available. The Practice Note then looks at potential issues that may arise as the UK exits the EU and at alternative regimes that may assist when seeking to obtain evidence. For insight into how a deal or no‑deal position might be reached, the House of Commons Exiting the EU Committee report, The progress of the UK’s...
The Debt Respite Scheme ( Breathing Space Moratorium and Mental Health Crisis Moratorium) ( England and Wales) Regulations 2020, SI 2020/1311 (the Regulations) took effect on 4 May 2021. Under these Regulations, a person who satisfies the relevant eligibility tests may, through a debt advice provider, seek either a breathing space moratorium or, if receiving mental health crisis treatment, a mental health crisis moratorium. In both situations, a moratorium limits creditor enforcement and pauses interest, fees and charges on any qualifying debt covered by it. A moratorium is not an end in itself; rather, it grants someone with problem debt the time to obtain professional debt advice and develop a longer-term strategy to resolve their financial difficulties. The route to obtaining either a breathing space moratorium or a mental health crisis moratorium is broadly the same. This Practice Note...
How does the B& PCs Disclosure Scheme work? This Practice Note outlines the Business & Property Courts’ ( B& PCs) Disclosure Scheme set out in CPR PD 57AD, giving a visual overview of the steps for giving disclosure, and clarifying when a claim will be treated as a Less Complex Claim. To assess whether your case comes within the Disclosure Scheme, refer to: Which disclosure rules apply to my claim—flowchart? For comprehensive guidance detailing the duties of parties and their advisers at each stage of the process (including key deadlines), see the relevant materials......
This Practice Note considers the position regarding the diligence of attachment in Scotland This note addresses how attachment operates within Scottish diligence, setting out the relevant position and context. For further guidance: on other types of diligence in Scottish civil procedure, consult Practice Note: Enforcement in Scottish civil litigation, which in turn connects to detailed guidance on a number of forms of diligence available in Scotland on the counterpart in England and Wales, see Introduction to enforcement—overview, which provides a general outline and links to more detailed guidance on various aspects of domestic enforcement in England and Wales on cross-border enforcement, refer to Practice Note: Cross-border enforcement—a guide for dispute resolution practitioners, which offers an overview and signposts more detailed guidance on multiple aspects of cross-border enforcement This Practice Note does not address land attachment or residual attachment; for those, see...
This Practice Note addresses witness privilege and confidentiality when a foreign court seeks the assistance of the courts of England and Wales ( English courts) to secure evidence for use in the foreign proceedings. The statutory provisions on privilege are contained in the Evidence ( Proceedings in Other Jurisdictions) Act 1975 ( E( POJ) A 1975). This Practice Note should be read alongside Practice Note: Cross border evidence—foreign court request for assistance. For guidance on privilege and confidentiality issues that may arise in English court proceedings regarding the use of evidence obtained in another jurisdiction (which fall outside the scope of this Practice Note), see Practice Note: Legal professional privilege in civil proceedings— Legal advice privilege—whose law determines? Privilege—general considerations The Act gives the term ‘evidence’ a wide ambit. As set out in E( POJ) A 1975, s 3(4):...
This Practice Note sets out the requirements and considerations for permitted assignment of claims or causes of action in English civil litigation. For guidance on assigning a claim or a cause of action, with specific focus on what the assignment paperwork ought to contain in further detail, see Practice Note: How do I assign a claim or cause of action? Note: in this Practice Note, references are to the transfer of both causes of action and claims. A cause of action is taken to mean '...a factual situation the existence of which entitles one person to obtain from the court a remedy against another person' ( Letang v Cooper), while a claim denotes a claimant’s formal assertion of that cause of action against a defendant. In the authorities, the expressions 'assigning a cause of action' and 'assigning a claim' are sometimes treated as...
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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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