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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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Prepared in collaboration with Landmark Chambers. The reason for special costs protection measures in environmental law The rationale for special costs protection in environmental law lies in internationally agreed principles. Such measures in environmental matters stem from international environmental law, for example Principle 10 of the 1992 Rio Declaration on Environment and Development. The Convention on Access to Information, Public Participation in Decision- Making and Access to Justice in Environmental Matters, concluded at Aarhus, Denmark, on 25 June 1998 (the Aarhus Convention), sets out in Article 1 that its purpose is to help safeguard the right of every person, both now and in the future, to live in an environment sufficient for his or her health and well-being. To that end, each Party must guarantee the rights of access to information, public participation in decision-making, and access to justice in...
This Practice Note introduces disclosure under the Civil Procedure Rules, highlighting the principal CPR provisions that regulate disclosure under CPR 31. It clarifies what constitutes a document for CPR purposes and supplies practical guidance for conducting a disclosure exercise. Note: this Practice Note does not cover claims within the Business & Property Courts Disclosure Scheme. For further detail, see: Disclosure Scheme ( Business & Property Courts)—overview. For assistance determining which disclosure regime applies to your matter, see: Which disclosure rules apply to my claim—flowchart? This Practice Note should be read together with: Disclosure—overview Inspection—overview Privilege and without prejudice communications—overview At the pre-action stage, be aware that certain pre-action protocols impose disclosure duties before proceedings commence. For more information, see: Pre-action disclosure and Norwich Pharmacal—overview. CPR provisions governing the disclosure process The CPR and case law form the legal framework governing...
ARCHIVED: This archived Practice Note is not maintained and is supplied for background reference only. Moreover, some links may not lead you to provisions as they stood on the date guidance in this Practice Note was originally issued. For details on earlier and/or later changes to the CPR, see: CPR updates—overview and Procedure Rule Committee minutes—overview. This Practice Note provides a summary of the CPR revisions taking effect on 1 December 2014 as a......
Case details and analysis This Practice Note sets out, in a concise table, a summary of the 2026 leading and/or illustrative judgments from the courts of England and Wales on disputes involving cryptoassets (cryptocurrencies, non-fungible tokens ( NFTs)), smart contracts and digital securities. For prior decisions, see Practice Note: Cryptoassets for Dispute Resolution lawyers—key and illustrative decisions [ Archived]. For general guidance on cryptoassets in a dispute resolution context, see: Practice Note: Cryptoassets for Dispute Resolution lawyers Practice Note: Crypto and digital assets—what are they and how do they work? Practice Note: Digital assets—legal status and development Issues in cryptoasset related civil claims—checklist and related content To remain current with the work of the UK Jurisdiction Taskforce (established under the Law Tech Delivery Panel), whose aim is ‘to demonstrate that English law and the jurisdiction of England and Wales together provide a...
ARCHIVED : This archived Practice Note compiles major dispute resolution ( DR) appeals and notable appellate rulings in general civil litigation in England and Wales from 2024 to date. It also highlights key forthcoming appeal matters (to support horizon scanning) together with reported judgments delivered in 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 the judgment and any bespoke News Analysis to aid understanding of the principles engaged and the impact of the decisions. It is not maintained and is offered for background use only. For details of key DR appeals from 2025 to date, see Practice Note: Dispute resolution: key appeal cases—2025 [...
ARCHIVED: This Practice Note has been archived and is not maintained Keeping abreast of case law that shapes a practitioner’s specialism, or influences civil litigation procedure generally, is a persistent challenge for those working in dispute resolution. This Practice Note distils the leading appeal authorities—decisions of the Court of Appeal and Supreme Court, and, where relevant, selected judgments of the Court of Justice of the European Union ( CJEU)—that we have reported, giving users straightforward access to those rulings. Use the table of contents in the left margin to browse, or locate items quickly with [ CTRL]+[ F]. It also sets out a selection of forthcoming appeals, where known, to aid horizon scanning. The material is not intended to be a comprehensive catalogue of every appeal and/or significant decision for dispute resolution practitioners. Key forthcoming appeal cases—2019 Terminating...
ARCHIVED : This Practice Note has been archived and is not maintained. This Practice Note compiles principal appellate cases (ie rulings of the Court of Appeal and the Supreme Court and, where applicable, selected judgments of the Court of Justice of the EU ( CJEU)) that we have covered, to make it simpler for users to locate those decisions. You can navigate the material via the collapsible table of contents on the left-hand margin and/or by using the hyperlinks listed below. The cases are arranged under these headings: Key DR Developments Brexit Applicable law Rome I Jurisdiction ...
ARCHIVED : This Practice Note has been archived and is not maintained. Keeping pace with case law that shapes a practice area is a constant challenge for practitioners. This Practice Note distils the principal appeal decisions ( Court of Appeal and Supreme Court, and, where appropriate, the Court of Justice of the European Union ( CJEU)) that we have reported, providing users with straightforward access to those rulings. The tracker is browsable, and cases are grouped under the following headings: Key DR developments, Applicable law, Jurisdiction, Service, Limitation, Claims and remedies, Injunctions and other relief orders, Pre-action, Litigation, Case management, Applications specific, Evidence and disclosure, Settlement, ADR, Appeals and Judicial Review, Costs and funding, Enforcement, Insolvency Alternatively, search the tracker using [ CTL]+[ F]. This resource is not intended to be a complete catalogue of all appeals. Key DR...
ARCHIVED This Practice Note is archived, is no longer maintained, and is supplied solely for background information. In addition, certain links may not lead to the provisions as they stood at the time this Practice Note’s guidance was issued. It assembles the series of News Analyses prepared by our Dispute Resolution contributors, featuring their evaluation of the principal cases and developments impacting Dispute Resolution lawyers during the first half of 2017. The seven ensuing News Analysis pieces stretch across a number......
ARCHIVED: this Practice Note is archived, not updated, and provided solely for general background information purposes. In addition, some hyperlinks may no longer point to the provisions as they stood on the date the guidance in this Practice Note was issued. Starting and managing adjudication—what should you be aware of? In this overview of the principal adjudication rulings from 2016, we examine the following: payment notices and final accounts—see details below contract matters—uncertainty and amendments—see details below serial adjudications and disputes—see details below jurisdiction and breach of natural jurisdiction—see details below adjudication enforcement—see details below recovering adjudication costs—see details below Payment notices and final accounts Two notable judgments arose this year on payment notices and final accounts: Mrs Justice O’ Farrell’s decision in Kilker Projects v Purton, addressing adjudication where payment notices were missing; and the Court of Appeal’s ruling in Complete Building Solutions v Brown and Brown, which explored whether...
This Practice Note addresses the compilation of bundles for trial. For guidance on preparing: bundles for an interim application—see Practice Note: Preparing for an application hearing— Application bundles bundles for an appeal—see Practice Notes: Appeals to the County Court or the High Court—the appeal bundle, Appeals to the Court of Appeal—bundles and Supreme Court—documents for appeal hearing—on or after 2 December 2024 electronic bundles—see Practice Notes: Electronic bundles in civil proceedings and Preparing electronic PDF bundles Importance and purpose of trial bundles The role of a trial bundle is to assemble the documents that are fundamental to the parties’ cases and to which any party’s counsel will need to refer at trial. It is not intended to replicate every disclosed document and should avoid material that is irrelevant or unnecessary. This was highlighted in Innovate...
The judicial branch The judicial branch of government in England and Wales acts independently from the executive and legislature, and remains institutionally distinct, and comprises the Senior Courts: the Court of Appeal, the High Court and the Crown Court. County Courts and the magistrates’ courts form another tier of the judiciary. The Constitutional Reform Act 2005 ( CRA 2005) made provision for a Supreme Court to serve as the UK’s ultimate court of appeal. The UK Supreme Court came into being in October 2009, supplanting the Appellate Committee of the House of Lords as the nation’s highest court. It stands apart from the Courts of England and Wales, as it also functions as the Supreme Court for Scotland and for Northern Ireland. Judges and magistrates are appointed by, and derive their authority from, the Crown. They must, however, exercise that authority lawfully, adhering to...
This Practice Note explores the contours of the reflective loss rule. It reviews the history and effects of the bar on reflective loss, pointing to the leading authorities that shaped it, namely Prudential Assurance v Newman Industries, Johnson v Gore Wood, Giles v Rhind and Marex v Sevilleja. It also highlights practical points sensibly borne in mind if you act for a shareholder and/or are engaged in a claim where the rule could be relevant. Summary of the rule against reflective loss The rule traces its origin to the principle in Foss v Harbottle: ie, where an actionable wrong is done to a company, the company is the proper claimant to recover any loss caused by that wrong. Put another way, where a duty owed to a company is breached and the company suffers loss, only the company may bring proceedings in respect of that loss. The...
This Practice Note explains protective costs orders ( PCOs), which restrict the quantum of costs payable in litigation. It outlines when the court may grant a PCO, what such an order looks like, the process for seeking one, and the consequences on costs if the bid fails. It also reviews authorities on PCOs in closed material proceedings, and addresses cost capping orders. A protective costs order ( PCO) exists to ensure claimants are not shut out from advancing meritorious claims purely because of the financial risk. It does so by capping the exposure to costs within the proceedings. While costs capping orders ( CCOs) likewise impose limits, PCOs and CCOs must be kept distinct: the jurisdictional bases differ, and their roles and aims are not the same. The court’s power in respect of each derives from separate sources, and the functions served by the two...
Rider for archived Practice Notes ARCHIVED: This Practice Note is archived and no longer updated. It is retained solely for historical context, as it addresses CPR 81 as it stood before 1 October 2020, and Practice Direction 81, which was wholly revoked with effect from 1 October 2020. If you are handling a committal application on or after 1 October 2020, consult the current CPR 81 and the relevant Practice Notes—see: Contempt and committal—overview. For the pre‑1 October 2020 iteration of CPR 81 or Practice Direction 81, see: This Practice Note outlines the procedure for issuing committal proceedings, whether for contempt or for breach of a writ of sequestration. It also sets out the steps required when making an application for committal. For help on the court’s approach to committal (including the various hurdles to overcome), see Practice Note: Committal...
Mitigation applies to all damages claims The notion that a claimant should mitigate their loss applies to every civil claim for damages, whether brought in contract, tort, or other recognised circumstances, although much of the case law on mitigation has arisen from contractual disputes. Consequently, even once causation and remoteness are established—subjects covered in practice notes on contractual breach, and on tort and negligence—the amount recoverable may still be affected if the claimant has not mitigated their loss. In essence, the innocent party cannot obtain damages for loss they could have avoided but did not, whether through unreasonable conduct or by failing to act. The key issue in mitigation is which steps it was reasonable, and which it was not, for the claimant to take. This is often referred to as the duty to mitigate or the rule on...
This Practice Note explores the doctrine of mistake in contract law. It surveys common, mutual and unilateral mistake, errors as to identity, and mistake regarding the signed document (non est factum). It also considers the effect of each type on the contract and how mistakes can be addressed by rectification or by construction. For guidance on dealing with errors in the execution of documents, see Practice Note: Deeds— Failure to comply with formalities and other defects and our Execution collection, in particular, The Basics— Q& As— Mistakes in executing documents. For further help where parties choose to fix a mistake by agreeing an amendment to the operative parts of a contract, see Practice Note: Contract variation. What is a mistake? A mistake is a wrong belief held by one or both parties at the point of contract formation. A mistake may relate to the: subject matter or the...
What is judicial review? Judicial review is the means by which the courts exercise a supervisory jurisdiction over the performance of public functions by public bodies. This supervisory jurisdiction should not be mistaken for, or treated as, a right of appeal. CPR 54.1 states that a 'claim for judicial review' means a claim to assess the lawfulness of: an enactment a decision, action, or failure to act in relation to the exercise of a public function. Proceedings usually take place in the Administrative Court, which forms part of the King's Bench Division of the High Court. Judicial review proceedings are governed by a number of Civil Procedure Rules, Practice Directions and a pre-action protocol. Further detailed and practical guidance is provided in the Administrative Court Judicial Review Guide. The guide is intended to assist parties pursuing judicial review claims in the...
Commercial contracts— Germany— Q& A guide [ Archived, 2022 edition] This Practice Note offers a jurisdiction-specific Q& A overview of commercial contracts in Germany, issued as part of the Lexology Getting the Deal Through series by Law Business Research (published: January 2022). Authors: Lutz Abel Rechtsanwalts Part G mb B— Marius Mann; Benjamin Baisch; Björn Weidehaas 1. Is there an obligation to use good faith when negotiating a contract? Yes. Good faith is set out in section 242 of the German Civil Code ( BGB) and is a basic tenet of German law. It imposes a duty on both contracting parties to fulfil their obligations faithfully and sincerely, taking customary practice into account. Nevertheless, where there is no breach of specific provisions of the BGB or the German Commercial Code ( HGB), enforcing a claim that relies solely on the general clause in section 242 BGB is...
This Practice Note addresses identifying a fiduciary, fiduciary duties and obligations, the no conflict rule, the no profit rule, a fiduciary's duty of confidence, and the remedies available for breach of fiduciary duty. Who is a fiduciary? There is no definitive catalogue of relationships that give rise to fiduciary obligations at common law in every situation universally. Certain relationships are inherently fiduciary, eg trustee and beneficiary, solicitor and client, principal and agent, business partner and co-partners, together with mortgagor and mortgagee. The obligations of some fiduciaries have been set out in statute; for instance, trustees owe a statutory duty of skill and care under section 1 of the Trustee Act 2000 ( Tr A 2000), and directors' relationships with their companies are addressed in the Companies Act 2006 too. For guidance on directors' fiduciary duties, see Practice Note: of directors for further detailed...
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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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