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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 sets out the arbitration carve-out under Brussels I and reviews the corresponding rules in Brussels I (recast). It further considers whether courts may assume jurisdiction over disputes governed by an arbitration agreement and the use of anti-suit injunctions. Note: from 10 January 2015 Brussels I was repealed in full and replaced by Brussels I (recast). Transitional measures nevertheless apply. For guidance on those measures, and whether Brussels I provisions remain relevant to your matter, see Practice Note: E& W Brussels I (recast)—application and exclusions. Introduction Courts lack jurisdiction to determine disputes where an arbitration agreement applies. Such agreements are private arrangements by which the parties waive the right to have any dispute between them heard by national courts. Instead, they opt for determination by a tribunal, typically selected by the parties for its expertise in a particular field. It should also be...
ARCHIVED : This Practice Note has been archived and is not maintained. This Practice Note offers a comparative overview, in tabular form, of the updated CPR 36 that came into force on 6 April 2015, set against the previous Part 36 regime (in effect before 6 April 2015). Note: although the new CPR 36 applies in full only to Part 36 offers made on or after 6 April 2015, from that date certain provisions also apply to offers made earlier where the trial (of the whole claim or any part/issue) is due to begin on or after 6 April 2015, including: CPR 36.3: definitions CPR 36.11: acceptance of a Part 36 offer CPR 36.12: acceptance of a Part 36 offer in a split trial case CPR 36.16: restriction on disclosure of a Part 36 offer See Practice Note:...
ARCHIVED: This Practice Note is archived, is no longer maintained, and is supplied for background information only. In addition, some links may not take you to the provisions as they stood on the date this Practice Note’s guidance was issued. For details of earlier and/or later amendments to the CPR, see: CPR updates—overview and Procedure Rule Committee minutes—overview. This Practice Note provides a synopsis of forthcoming CPR amendments. The new measures commence on 5 and 6 April 2015. The principal reform is the replacement Part 36 and the consequential revisions to the costs rules. Further alterations concern children and protected parties, transfer of proceedings, judicial review and fixed costs. The amendments also give effect to sections 84 and 87 of the Criminal Justice and Courts Act 2015 in relation to judicial review. The changes are contained in SI 2014/3299 and its making document, and in SI...
ARCHIVED This archived Practice Note is not maintained and is provided for background reference only. In addition, some links may not lead to the provisions as they stood on the date this guidance was issued. For details of earlier and/or later CPR amendments, see: CPR updates—overview and Procedure Rule Committee minutes—overview. This Practice Note has been updated to reflect SI 2014/867, published on 2 April 2014. Throughout April 2014, various changes to the CPR and practice directions take effect on different dates. Below we give a brief outline and, for ease, list the CPR changes in a table so the effective dates are clear. Unless otherwise indicated, the amendments are made under SI 2014/407. The SIs coming into force Currently, four SIs are bringing changes to the CPR into effect. It is expected that a further SI will address the new 28‑day extension of time by...
Practice Note This Practice Note assists with identifying the applicable law for contracts concluded on or after 1 January 2021. For agreements entered into before that date, the UK courts apply a different applicable law framework, which varies according to when the contract was made. For detailed guidance, see the following resources: Practice Note: Applicable law—a guide for dispute resolution practitioners Practice Note: Assimilated law In this Practice Note, UK Rome I refers to Regulation ( EC) 593/2008. That regulation governs the choice of law where the contract was entered into on or after 1 January 2021. Previously called Retained Rome I, from 1 January 2024 it has been retitled Assimilated Rome I—the change is in name only; the regulatory provisions are unchanged. Authorities may use either designation, and therefore, for consistency, this Practice Note adopts the term UK Rome I. This...
This Practice Note explores the courts’ treatment of appeals that turn on issues of foreign law. For general appeal guidance, see: Civil appeals: general and preliminary considerations—overview. For wider guidance on appeals challenging findings of fact, see Practice Note: Grounds of appeal—appealing a finding of fact. It also references the decision in Mac Millan Inc v Bishopsgate Investment Trust Plc ( No 4). Note that some judgments cite it as MCC Proceeds Inc v Bishopsgate Investment Trust... Foreign law is a question of fact Foreign law is approached as a factual matter because, under settled principles of English law, an English judge is not presumed to know foreign law. For guidance, see Practice Note: Foreign law—guide for dispute resolution practitioners— What is foreign law?... Role of the judge at first instance While this Practice Note addresses how the appeal courts deal with appeals on foreign law points, it is...
ARCHIVED: this Practice Note is no longer maintained and is provided solely for background information. In addition, some links may not direct you to the provisions as at the date this guidance was issued. Changes to appeals in 2016—what do you need to know? In 2016, months of consultations and meetings came to a head, aimed at addressing the case backlog in the Court of Appeal. Proposals were put forward to cut the court’s workload, notably by tightening the threshold for permission to appeal. Not every proposal passed through consultation, but many did, resulting in: an entirely new CPR 52; substantial revisions to the Practice Directions—particularly CPR PD 52A and CPR PD 52C; the re-routing of appeals away from the Court of Appeal......
When will the court allow an appeal against a finding of fact? The appeal court will permit an appeal only where the lower court’s decision was: wrong; or unjust due to a serious procedural or other irregularity in the lower court proceedings ( CPR 52.21(3)). For more information, see Practice Note: Grounds for appealing and preliminary considerations. Where an appeal seeks to overturn a trial judge’s primary findings of fact, intervention is exceptional. An appellate court will not disturb a first instance judge’s factual conclusion simply because it would have reached a different view ( Stocker v Stocker). The higher courts have repeatedly cautioned against interfering with a trial judge’s factual findings unless compelled to do so. That restraint extends not only to findings of primary fact, but also to the assessment of those facts and the inferences properly drawn from them, as...
This Practice Note addresses appealing a ruling on the proper forum for resolving a dispute. Considerations before making an appeal When a forum contest arises, the court’s central inquiry is: which venue is the natural and suitable place to try the case? In answering that, the judge considers the totality of evidence presented. For those advising on a potential appeal against a forum decision, that assessment matters because appellate courts seldom entertain challenges that ask them to revisit the evidential evaluation made at first instance. The point is illustrated by the House of Lords in Spiliada Maritime v Cansulex (1986), which stressed that weighing the comparative advantages of a trial in England versus abroad is quintessentially for the trial judge, reflecting the considerable expertise of Commercial Court judges in such issues, and that appeals should be exceptional, indeed, with appellate...
This Practice Note reviews the former bar, while the UK was an EU member, on awarding anti-suit injunctions over proceedings in another EU Member State, and sets out the post- Brexit position, now that the UK is a third state to the EU. Please note that the Court of Justice of the European Union is referred to as the Court of Justice. Definitions anti-suit injunctions — orders made by a court preventing a party from commencing or continuing proceedings in another country. For detailed guidance on the meaning of an anti-suit injunction, see Practice Note: Anti-suit injunctions—principles Brussels I (recast) — Regulation ( EU) 1215/2012 Withdrawal Agreement — has the meaning in section 39(1) of the European Union ( Withdrawal Agreement) Act 2020: the agreement between the UK and the EU under Article 50(2) of the Treaty on European Union setting out the...
This Practice Note outlines guidance on orders the court may make that are ancillary to a freezing injunction, with particular emphasis on passport orders and receivership orders supporting such relief. For guidance on orders compelling disclosure of information about the defendant’s assets—whether granted before or as part of a freezing injunction, and capable of later supplementation—see Practice Note: Freezing injunctions—asset disclosure. For guidance on freezing injunction applications and the applicable principles, see: Freezing injunctions—guiding principles Freezing injunctions—post-judgment Freezing injunctions against third parties—the Chabra jurisdiction Freezing injunctions—the application Freezing injunctions—the draft order This Practice Note also addresses the interpretation and application of the relevant CPR provisions. Depending on the court in which your matter is progressing, you should also be alert to any additional provisions—see further the main section titled Court specific guidance below. Orders ancillary to freezing injunctions In addition to granting injunctive relief, the court has power to make...
Managing artificial intelligence ( AI) related civil disputes This Practice Note explains the considerations for dispute resolution lawyers managing claims that involve AI. It surveys the principal procedural questions that arise when bringing a civil claim where the dispute’s subject concerns AI technologies. It is directed at proceedings where AI sits at the heart of the dispute rather than appearing at the margins. The distinctive aspects of adopting AI, combined with its technical character in a fast-moving landscape, create intricate litigation issues, including: who develops it, how it is embedded within existing systems, its level of autonomy and capacity for self-learning/correction, and the consequences for third parties. Across any factual backdrop, the initial tasks in evaluating a civil claim include identifying the parties, pinpointing potential causes of action, setting out the elements needed to prove a successful claim, and...
This Practice Note considers agreements to agree, explaining why a promise to settle particular contractual terms at a later date has traditionally been treated as unenforceable. It also examines those situations where courts have nevertheless upheld contracts as binding, despite an apparent lack of certainty over fundamental terms. Principle Traditionally, contracts that contain an agreement to agree future contractual terms have been viewed as too uncertain to enforce. Whether a binding contract exists is assessed by an objective test, namely: on the evidence, a reasonable person would conclude the parties were in agreement and intended to create legal relations (the parties’ own views are disregarded), and the contract is sufficiently certain to be enforceable. Agreement For a contract to be binding, its terms must be definite enough for the court to give them practical effect and, in particular, those terms must be enforceable without the need for any further...
This Practice Note offers a concise survey of agency-related disputes and guidance on the practical application of the key legal rules of agency law within dispute resolution. Certain categories of agent are heavily regulated by statute, and disputes about them sit outside the scope of this Practice Note. For disputes concerning commercial agents, within the meaning of the Commercial Agents ( Council Directive) Regulations 1993, SI 1993/3053, see these Practice Notes: Commercial agency Relationship of commercial agent and principal Termination of commercial agency For disputes concerning: company directors (acting as agents of the company)—see Practice Note: Claims against directors—key considerations for dispute resolution practitioners— Directors’ duties letting and estate agents—see Practice Note: Regulation of letting and estate agents What is agency? Agency is a legal relationship in which one person (the principal) grants authority to another (the agent) to act on the principal’s behalf in dealings with a third party. The law of...
This Practice Note explores issues around an agent’s authority to enter contracts for a principal and, relatedly, determining which party should sue or be sued where an agency relationship exists. For broader guidance on the formation of an agency, see Practice Note: Nature and types of agency. Who is liable? Agent or principal—general position In Re Lendy, the judge distilled the position on agent and/or principal liability where an agent acts for their principal: The default rule is that the contract is that of the principal and only the principal can sue or be sued. However, this can be displaced if, considering the nature and terms of the agreement and the surrounding circumstances, the parties’ intention points to a different outcome. If an agent signs a contract expressly as agent, they are taken not to have contracted personally unless it is clear from other...
Note: This Practice Note is now mainly of historical interest. In January 2010, Lord Justice Jackson released his Review of Civil litigation Costs: Final Report; see Practice Note: Jackson final costs report [ Archived]. Although he stopped short of proposing compulsory Alternative Dispute Resolution ( ADR), the report carries implications for all involved in litigation, who should, at each stage, give thought to ADR. Accordingly, parties should keep ADR in view throughout. Need for and purpose of April 2013 reforms to ADR The terms of reference for Lord Justice Jackson’s review required him to determine the impact that case management procedures have on costs, and to consider whether alterations in process and/or procedure could secure more proportionate expenditure. He highlighted ADR as one of several areas in which the expense of litigation could, potentially, be substantially reduced......
This Tracker outlines key developments for dispute resolution lawyers on the integration of alternative dispute resolution ( ADR) into the civil litigation system in England and Wales. For wider tracking of dispute resolution issues, see Practice Note: Tracker—legislation, consultations and other developments— Dispute Resolution. The development of compulsory ADR Since the Court of Appeal’s decision in Halsey v Milton Keynes General NHS Trust, discussion has persisted about whether a court may require or order parties to attempt settlement via ADR, and whether cost sanctions can be applied to those who unreasonably refuse to engage with ADR. In Halsey, the Court of Appeal considered it inappropriate for the court to compel parties to refer their dispute to ADR against their wishes, as doing so would ‘impose an unacceptable obstruction on their right of access to the court’. In July 2021, the Civil Justice Council ( CJC)...
This Practice Note reviews key alternative dispute resolution ( ADR) mechanisms in Scotland. For the closest counterparts in England and Wales, see ADR and dispute resolution clauses—overview, Arbitration—overview, Mediation—overview and Cross-border ADR—overview, which, in turn, direct readers to detailed materials on specific aspects of ADR in England and Wales. This Practice Note does not consider ADR in consumer disputes. Key: OCR— Sheriff Court Ordinary Cause Rules 1993 RCS— Rules of the Court of Session 1994 Obligations to advise on ADR Practitioners should note the Law Society of Scotland’s guidance for solicitors providing dispute resolution advice, namely that solicitors ought to have a sufficient grasp of commonly available ADR options to enable proper evaluation and clear communication of those options to a client, taking into account the client’s interests and objectives......
This Practice Note sets out guidance on putting forward fresh evidence when challenging a court’s decision under CPR 52. It explains when the appellate court may accept new material, how the Ladd v Marshall criteria apply when deciding whether to admit evidence on appeal, and the court’s discretion under CPR 52.21(2), including whether the material could have been secured for trial, whether it would have had a significant bearing, and its reliability. A note on CPR 52.21 and older cases The rules on admitting fresh evidence on appeal are found in CPR 52.21(1)–(2). Until October 2016, the equivalent provisions were in former CPR rule 52.11. Some judgments still cite the old rule, but the same principles apply to CPR 52.21 because the wording is identical. For further detail, see Practice Note: Amendments to Part 52 on 3 October 2016—table of...
This Practice Note offers examples of decisions where the court has considered applications to adjourn a trial. It is presented as tables: the first provides instances in which an adjournment was granted, and the second records matters where the court declined to adjourn. For an outline of the principles applied by the courts when dealing with an adjournment request, see Practice Note: Adjourning trial... Trial adjourned—general Case details and analysis: R (on the application of Fiona Ford) v Coventry Magistrates’ Court [2025] EWHC 843 ( Admin). This was an appeal from an unsuccessful bid to adjourn magistrates’ court proceedings seeking a premises closure order... Grounds of the adjournment application: Additional time to obtain legal aid funding... Summary of decision: The court confirmed that the governing test is fairness. It should not be presumed that fairness dictates a single answer; in a given 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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