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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
Practice Note This Practice Note examines when a court might permit the alteration of parties to proceedings—specifically, the joinder of a new party or the substitution of one party for another—after a relevant limitation period has expired (or may have expired). It cites section 35 of the Limitation Act 1980 ( LA 1980) and considers pertinent provisions of the Civil Procedure Rules ( CPR), notably CPR 17 and CPR 19.6, which address the addition of parties. It ought to be read alongside Practice Note: Limitation—amendments to statements of case, set-offs and counterclaims, which likewise deals with amendments to statements of case once the relevant limitation period has ended, with particular emphasis on adding or substituting new causes of action after expiry (and also setting out the position on limitation and counterclaims). For summaries of illustrative decisions, see the following Practice Notes: ...
This Practice Note ought to be read alongside Practice Note: Starting civil claims in the County Court, which addresses the general approach to commencing civil claims in the County Court. This Note explains where and how to issue a County Court money claim ( CCMC) under CPR 7. For guidance on issuing a claim in the County Court under CPR 8 (used where there is no substantial dispute of fact and for certain categories of proceedings), see Practice Note: Starting civil claims in the County Court— Where to issue CPR 8 claims in the County Court... What is a County Court money claim ( CCMC)? A money claim may pursue a specified or an unspecified sum ( CPR PD 7A, para 5.1(1)(b)) and includes a claim for damages—the CPR glossary defines damages as a ‘sum of money awarded by the court as...
An order for delivery up is a form of mandatory injunction that requires the return, within a specified timeframe, of documents or other property improperly removed from the employer. Applications for such relief may include: Delivery up under CPR 25 and section 4 of the Torts ( Interference with Goods) Act 1977, where the defendant is alleged to have wrongfully interfered with goods owned by the claimant (delivery up of goods) Delivery up of assets belonging to the defendant where there is concern they may attempt to evade enforcement of a judgment Preservation of property pursuant to CPR 25 When to apply Delivery up orders, search orders and freezing orders are generally pursued as an interim remedy, as matters for the employer are often urgent. Delay in seeking such orders can lead to the permanent loss or destruction of the items...
Practice Note This Practice Note sets out guidance on interest on costs orders awarded to the receiving party. It explains who may recover interest, the date from which interest runs, and the rate of interest. It also considers when interest is payable, the circumstances in which it can be suspended, when the court may disallow interest, and the position on interest where a costs order has been successfully appealed. It also outlines the provisions governing interest in the High Court and the County Court, noting differing requirements. For detailed guidance on payment and enforcement of costs orders, see Practice Note: Costs orders—payment and enforcement. For guidance on interest on costs involving foreign currency, see Practice Note: Cross-border disputes—costs considerations......
Initial Disclosure This Practice Note reviews the supply of Initial Disclosure alongside a party’s statement of case under the Disclosure Scheme operating in the Business and Property Courts ( B& PCs) pursuant to CPR PD 57AD. It addresses what has to be given, the duties on the party, and the stance adopted by the court when the relevant requirements and duties are not satisfied. It further looks at the position concerning parties beyond England and Wales. The Disclosure Scheme took effect on 1 October 2022 following a disclosure pilot scheme. Decisions arising under the pilot continue to carry weight and are referred to below. The provisions governing Initial Disclosure appear in CPR PD 57AD, para 5. Nothing in that paragraph alters the effect of CPR PD 16, para 7.3, which identifies the documents to accompany the particulars of claim where the claim relies on a...
Once the parties conclude that mediation is a suitable route to resolve their dispute, or where the court directs them to consider it, their solicitors will take responsibility for arranging and setting up the mediation. This Practice Note addresses identifying and selecting a mediator, outlining the steps to find and choose an appropriate candidate, including what to do if consensus cannot be reached. Ordinarily, the parties jointly, and by consent of all parties, agree on a mediator; if agreement on the appointment proves elusive, a neutral third party—such as an organisation delivering alternative dispute resolution ( ADR) services—may make the appointment on their behalf. Requirements may vary by the court handling your case, so be alert to any extra provisions—see: Court specific guidance. For details of mediator’s fees and other mediation expenses, see Practice Note: Mediation costs—liability and recovery. For an overview of the lawyer’s role in...
This Practice Note examines the most common route to enforcing an adjudication decision—issuing a Part 7 claim with an application for summary judgment in the TCC, as set out in section 9 of the TCC Guide. It also addresses the scope to secure enforcement by seeking a mandatory injunction, in appropriate cases, and the impact of a clause conferring foreign jurisdiction on adjudication enforcement proceedings. Although a Part 7 claim is the usual, and preferred, route to enforce an adjudicator’s decision, there are some infrequently used alternative avenues available. Parties may make an application to the TCC for declaratory relief under CPR Part 8 where a significant dispute of fact is improbable and no money judgment is pursued—see Practice Note: Adjudication and Part 8 proceedings. In certain cases it might be feasible to rely on insolvency proceedings to secure compliance with an...
Practice Note This Practice Note examines the court’s discretion to postpone a hearing under CPR 3.1(2)(b) and a party’s ability to seek such an adjournment. In particular, it identifies the five specific ‘ Fitzroy Robinson’ criteria the court will weigh when deciding whether to defer or bring forward a hearing, together with discussion of authorities in which the Fitzroy factors have been applied. It also addresses additional matters the court may take into account, including the timing of any adjournment request, and considers the ill-health of a party or witness and the medical evidence that must accompany an application advanced on that basis. For examples of court judgments illustrating the courts’ approach to applications to adjourn a trial, see Practice Note: —illustrative decisions. Depending on the court in which the proceedings are being conducted, the relevant court guide may contain further guidance that should be...
This Practice Note explores when a settlement agreement can be undone, covering questions of validity arising from capacity, mistake, illegality, fraud, so-called ‘sharp practice’, and duress. Challenging the validity of a settlement agreement If the soundness of a settlement embodied in a Tomlin order, or another consent final order, is disputed, and proceedings were already on foot before the settlement was reached, a party may apply within the extant proceedings to set aside the court order giving effect to the compromise under CPR 3.1(2)(p). That provision sits within the court’s general case management powers and allows the court to make whatever order is required for the proper management of the case and to promote the overriding objective. Under general principles of contract law, there are scenarios in which a settlement agreement is ineffective and can be set aside. Examples...
Whether a party can successfully rely on a force majeure clause hinges on the exact language used, the deal’s commercial setting and background, and the particular facts surrounding the asserted force majeure event and the alleged hindrance to contractual performance. For more detailed guidance, see Practice Notes: • Force majeure—consequences and contract discharge • Force majeure clause analysis—a practical guide. There is, however, some general direction that can be taken from the authorities, with the principal ones outlined below. For commentary on the doctrine of frustration, often examined alongside force majeure, see Practice Note: Discharge by frustration. ‘ Acts of God’ decisions are listed below... Case details and analysis Nature of dispute, key issues considered; Event; Result RTI Ltd ( Respondent) v MUR Shipping BV ( Appellant), 15 May 2024, Supreme Court, [2024] UKSC 18 News Analysis: LNB News...
This Practice Note reviews the position on fixed costs prior to 1 October 2023 under Part 45. It outlines the purpose of fixed costs and the range of claim types and cost categories to which they apply. Note that the enlargement of the fixed costs regime took effect on 1 October 2023. For all civil claims, apart from personal injury and disease, the extended fixed costs framework applies (unless a case is expressly excluded) where proceedings are issued on or after 1 October 2023. For personal injury matters the extended fixed costs regime applies to cases where the cause of action accrued on or after 1 October 2023, and for disease claims the extended fixed costs regime applies to cases where the letter of claim was dispatched on or after 1 October 2023. For more detail, see Practice Note: Fixed...
This Practice Note explains the key points to consider when preparing to file a defence to a claim issued under CPR 7. It addresses the defendant’s obligation to submit a defence, the applicable time limits (including potential extensions), and the implications of failing to file on time. It also highlights further points to bear in mind when lodging the defence where counterclaims or additional claims are pursued. For drafting support, see Practice Notes: Drafting the defence—formalities and Drafting the defence—drafting tips. For service requirements, see Practice Note: Serving the defence. This Practice Note guides the interpretation and application of the relevant provisions of the Civil Procedure Rules. Depending on the court hearing the matter, additional provisions may apply; for details, see: Court specific guidance. Requirement to file a defence Claims under CPR 7 A defendant must file a defence if they intend to contest all or part of the...
This Practice Note This Practice Note examines when parties may consent to prolong or modify a deadline prescribed by the CPR, practice directions or a court order, and summarises the court’s stance on granting extensions of time. It does not cover extensions connected to service of the claim form, service of the particulars of claim, or the service of evidence in claims brought under CPR 8. For guidance on extending time for service of the claim form, see: Extending time for service of the claim form—principles; Extending time for service of the claim form—making an application; and Extending time for service of the claim form—illustrative decisions. For extending time for service of the particulars of claim, see Practice Note: Service of the particulars of claim. For extending time for service of evidence in a Part 8 ( CPR 8) claim, see...
This Practice Note pinpoints and distils key cases on the responsibilities of legal advisers when collaborating with expert witnesses tasked with preparing and giving evidence in a civil court, and on the duties of the experts themselves. Drawing from those decisions, it highlights what practitioners should avoid or adopt when selecting, instructing and engaging with expert witnesses. Admissibility of opinion evidence The admissibility of opinion evidence from witnesses with expertise in the relevant field is addressed in the Supreme Court decision of Kennedy v Cordia ( Services). The court set out ‘four considerations which govern the admissibility of skilled evidence’ (the term for expert evidence in civil procedure in Scotland where the case originated) as whether: the proposed skilled evidence will aid the court in its task the witness has the requisite knowledge and experience the witness is objective in the presentation and assessment of the...
Preparation of exhibits to witness statements and affidavits This Practice Note concentrates on assembling exhibits for witness statements and affidavits. It defines what an exhibit is and sets out practical matters to bear in mind during preparation, indicating where the requirements differ between witness statements and affidavits. It provides guidance on the form an exhibit should take, how to organise exhibit bundles, and how to address voluminous, defective and non‑documentary exhibits. Depending on the court for your claim, additional provisions may apply—see Court specific guidance. This Practice Note should be read with Practice Notes: Affidavits and witness statements supporting interim applications, Witness statements—substantive content, and Drafting witness statements—formalities and dealing with problematic witnesses. An exhibit is made up of documents or other items used to support the contents of a witness statement or an affidavit. Exhibits are referred to within, but remain separate from, the...
This Practice Note considers exclusion and limitation of liability in business-to-business ( B2B) contracts. This Practice Note offers guidance on the common law and statutory controls that govern exclusion and limitation of liability clauses (also described as limitation of liability clauses, limitation clauses, exclusion of liability clauses, exclusion clauses and exemption clauses), including the Unfair Contract Terms Act 1977 ( UCTA 1977) and the Misrepresentation Act 1967 ( MA 1967). It identifies which provisions amount to exemption clauses and sets out three central matters to address when drafting them or assessing them in a dispute: incorporation construction statutory controls It also outlines the courts’ treatment of attempts to exclude or restrict liability for certain breaches (eg fundamental breach) and for different heads of loss (eg direct loss, indirect and consequential loss, loss of profits, loss of use and loss of data). It notes common...
This Practice Note outlines the matters a court will weigh on an application where a party wishes either to found or to dispute the jurisdiction of the courts of England and Wales (the English courts) in issue. There are three central requirements: a genuinely triable issue must exist; the claimant must show a good arguable case; and the English courts must be the appropriate forum for resolving the parties’ dispute in question, between them. This Note cites the decision in AK Investment v Kyrgyz Mobil, which some law reports record, in certain series, simply as Altimo Holdings & Investment Ltd v Kyrgyz Mobil Tel Ltd. Why is jurisdiction an important issue? The significance of confirming the court’s jurisdiction to adjudicate the claim before it has been examined in many authorities across the jurisprudence extensively. A concise overview appears in the Court of Appeal’s decision in...
This Practice Note outlines equitable execution and sets out the procedure to follow when seeking an order appointing a receiver by way of equitable execution. What is equitable execution? Equitable execution is the court’s appointment of a receiver to collect income produced by a judgment debtor’s assets. That receiver oversees those income streams and makes payments to the judgment creditor to clear the judgment debt, without conferring any entitlement on the creditor to the underlying asset. This is a different kind of receiver from those encountered in insolvency. Equitable execution is not an insolvency process and the creditor gains no proprietary interest or secured standing. It is neither a simple nor inexpensive mode of enforcement and, often, securing a third party debt order or a charging order will be the preferable way to enforce a judgment debt. Nevertheless, where the standard enforcement routes are...
This Practice Note addresses enforcement of settlement agreements reached before any claim is issued. In contrast to compromises made after a claim has begun, a pre-issue settlement leaves nothing to be stayed or brought to an end. As a result, a judgment or order is not typically required, and the enforcement questions are correspondingly different. If a claim has already been issued, see Practice Note: Enforcing settlement agreements concluded after proceedings have commenced. How did the parties conclude their pre-action settlement? The parties may have formed a settlement contract by any of the following: by an executed agreement in a contractual document by deed by a binding exchange of emails or letters by an offer and acceptance under CPR 36 (a pre-action Part 36 offer) Enforcement of an executed agreement in a contractual document Where, pre-action, the parties have settled their dispute by executing a contractual agreement but one party does not...
This Practice Note This Practice Note outlines the available routes for recording a settlement, including by correspondence, by contract or deed, and via a Tomlin order or consent order. It examines the pros and cons of each approach, addressing the often tricky question of when an offer to settle is actually accepted, together with the related point about the footing on which negotiations take place (for instance, ' Without prejudice save as to costs' and/or ' Subject to contract'). It also details execution formalities for settlements effected by contracts and deeds, and includes example wording for counterparts. For help with making an offer to settle, see Practice Note: Settling disputes—settlement offers ( Calderbank, WPSAC and Part 36). For guidance on drafting the terms of a settlement agreement (whether signed as a contract or a deed), see Practice Note: Settling...
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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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