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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 ARCHIVED: This Practice Note is archived and not maintained. It tracks domestic legislation introduced by the UK government in response to the coronavirus ( COVID-19) pandemic, and includes a Coronavirus SI database compiling details of pertinent draft and made secondary legislation laid before Parliament. Quick links Click the links below to go to the relevant section: Coronavirus legislation Coronavirus SI database Coronavirus Act 2020 Coronavirus Act 2020—commencement tracker Bill Tracker Coronavirus legislation In addition to the Coronavirus Act 2020 (see below), the government has used delegated powers to introduce and deliver further coronavirus measures through secondary legislation. The chief vehicle is statutory instruments ( SIs). These SIs are made under varied enabling powers for multiple purposes, for example to modify existing UK law and to implement new or revised domestic policy prompted by the outbreak, including in public health,...
FRC Culture Report In July 2016, the Financial Reporting Council released a study on corporate culture (the FRC Culture Report), examining how organisational culture influences a company’s governance. A central conclusion was that strong governance relies on companies engaging with, and reporting to, their stakeholders. The government reinforced this in its August 2017 response to the green paper on corporate governance reform, highlighting better stakeholder engagement and reporting. The resulting reform package included proposals to: introduce secondary legislation requiring large public and private companies to explain how their directors meet section 172 of the Companies Act 2006 ( CA 2006), including taking account of employees and other interests when seeking to promote the company’s success invite the FRC to consult on creating a new UKCG Code principle underlining the need to strengthen the voice of employees and other...
Section 2— Setting the scene This Resource Note summarises the core requirements of Section 2 of the UK Corporate Governance Code ( UKCG Code) on the division of responsibilities, and signposts key third‑party materials, guidance, commentary and analysis, together with our own resources, to support practical application... Materials covered Financial Reporting Council ( FRC) 2018 Guidance on Board Effectiveness Chartered Governance Institute ( CGI) guidance (formerly ICSA: The Governance Institute) Institutional Shareholder Services ( ISS) United Kingdom and Ireland Proxy Voting Guidelines 2024 Pensions and Lifetime Savings Association ( PLSA) Stewardship and Voting Guidelines 2024 Pensions & Investment Research Consultants Ltd ( PIRC) Shareholder Voting Guidelines, available to purchase from PIRC’s website Investment Association ( IA) Comply or Explain: Investor Expectations and Current Practices ( December 2012) EY/ IA joint report, Board...
STOP PRESS: The latest UK Corporate Governance Code (2024 UKCG Code) was issued on 22 January 2024, introducing modest updates to the version released in 2018 (2018 UKCG Code). The 2024 UKCG Code will apply to accounting periods starting on or after 1 January 2025, except for Provision 29, which concerns a board declaration regarding internal controls and will take effect for accounting periods beginning on or after 1 January 2026. In parallel, the best practice guidance that supported the 2018 UKCG Code has been merged into a single digital source to accompany the 2024 UKCG Code. For more detail, see News Analysis: UK Corporate Governance Code 2024 published—what’s changed? This Resource Note sets out the key provisions in Section 5 of the UK Corporate Governance Code on ‘ Remuneration’, and points to relevant third party materials, guidance, commentary and analysis, alongside...
STOP PRESS A refreshed UK Corporate Governance Code ( UKCG Code) was released on 22 January 2024 (the 2024 UKCG Code). It introduces modest amendments to the 2018 iteration (2018 UKCG Code). The 2024 UKCG Code takes effect for accounting periods commencing on or after 1 January 2025, save for Provision 29—covering the board’s declaration on internal controls—which applies to periods beginning on or after 1 January 2026. In parallel, the best practice guidance that accompanied the 2018 UKCG Code has been consolidated into a single digital resource supporting the 2024 UKCG Code. For more detail, see News Analysis: UK Corporate Governance Code 2024 published—what’s changed? This Resource Note distils the principal provisions of Section 1 ( Leadership and Purpose) of the UK Corporate Governance Code and signposts pertinent third-party materials, guidance, commentary and analysis, together with resources, to provide practical assistance on applying the...
Corporate governance comprises the frameworks, policies and procedures designed to steer and oversee a company. When a business embeds robust corporate governance policies, it tends to cultivate trust, transparency and accountability, and supports a fairer society by balancing the interests of all stakeholders. Sound governance is also thought to underpin strong corporate performance and help organisations nurture growth, long-term investments, financial stability and business integrity. The UKCG Code is a central pillar of the UK’s corporate governance regime. It is administered by the Financial Reporting Council ( FRC). It sits at the heart of this governance framework. Evolution of the UKCG Code Following a series of high-profile corporate scandals, the Committee on the Financial Aspects of Corporate Governance was created in May 1991 to review UK corporate governance in relation to financial reporting and accountability. The committee, chaired by Sir Adrian Cadbury, issued its final...
Composition, succession and evaluation This Resource Note sets out the key elements of Section 3 of the UK Corporate Governance Code ( UKCG Code), covering ‘ Composition, succession and evaluation’, and signposts pertinent external materials, guidance, commentary and analysis, alongside our own tools, to provide practical direction on applying it in practice......
STOP PRESS: A revised UK Corporate Governance Code ( UKCG Code) was released on 22 January 2024 (2024 UKCG Code). It introduces only limited amendments to the current UKCG Code, first issued in 2018 (2018 UKCG Code). The 2024 UKCG Code applies to accounting periods commencing on or after 1 January 2025, save for Provision 29, which requires a board declaration on internal controls and applies to accounting periods beginning on or after 1 January 2026. In addition, the best practice guidance supporting the 2018 UKCG Code has been consolidated into a single digital source to sit alongside the 2024 UKCG Code. For further detail, see News Analysis: UK Corporate Governance Code 2024 published—what’s changed? This Resource Note examines those parts of the Introduction to the UK Corporate Governance Code ( UKCG Code) that relate to reporting on, and applying, the UKCG Code. It...
ARCHIVED: This Practice Note is archived, not maintained, and provided solely for background reference. It addresses the ‘flexible furloughing’ version of the Coronavirus Job Retention Scheme ( CJRS) that operated from 1 July to 31 October 2020. The content reflects the position under the revised CJRS during that timeframe. For more detail on: the extended CJRS running between 1 May and 30 September 2021, see Practice Note: Coronavirus Job Retention Scheme (extended version 1 May to 30 September 2021) [ Archived] the extended CJRS in force from 1 November 2020 to 30 April 2021, see Practice Note: Coronavirus Job Retention Scheme (extended version 1 November 2020 to 30 April 2021) [ Archived] the original CJRS applying from 1 March to 30 June 2020, see Practice Note: Coronavirus Job Retention Scheme (original version to 30 June 2020) [ Archived] For a template letter documenting flexible furlough...
ARCHIVED: This archived Practice Note is not maintained and is provided for background only. It reviews the extended form of the Coronavirus Job Retention Scheme ( CJRS) that ran from 1 May 2021 to 30 September 2021, described here as the ‘extended CJRS’ or the ‘ CJRS extension’. The CJRS has now ended. Claims for September 2021 had to be submitted by 14 October 2021, with any amendments required on or before 28 October 2021. For claim periods from 1 November 2020, HMRC may accept late claims or amendments where taxpayers have: taken reasonable care in attempting to claim on time a reasonable excuse, and claimed as soon as their reasonable excuse no longer applies For more on the process for making a late claim or amendment, and the details that must be provided, see: HMRC guidance: Make a late CJRS claim. Taxpayers can also use the HMRC Check a...
ARCHIVED: This Practice Note is not maintained and is for background information only. UPDATE (5/11/20): In a statement to the House of Commons on Thursday 5 November 2020, the Chancellor of the Exchequer, Rishi Sunak, confirmed that the Coronavirus Job Retention Scheme ( CJRS) furlough scheme would be prolonged. As a consequence, payment of the Jobs Retention Bonus ( JRB) will not occur in February 2021, and the government intends to deploy a fresh retention incentive when appropriate. See the HM Treasury press release, Government extends Furlough to March and increases self-employed support, and the HMRC policy paper, Extension of the Coronavirus Job Retention Scheme. This Practice Note has been revised to reflect the fact that the relevant CJRBS guidance has been withdrawn. It sets out details of the guidance issued on the Coronavirus Job Retention Bonus Scheme (...
ARCHIVED: This Practice Note is archived and is not maintained. What is the CJRS? At the Spring Budget 2020, the government introduced a range of steps to support businesses through the coronavirus pandemic (eg suspending business rates). One such measure was the temporary ‘ Coronavirus Job Retention Scheme’ ( CJRS), which was generally available to UK employers with a PAYE payroll, subject to eligibility rules. The scheme started on 1 March 2020 and, following several extensions, remained in place until 30 September 2021. Its purpose was to help employers whose operations were badly hit by coronavirus and who might otherwise have needed to make redundancies. Staff included in the CJRS were referred to as ‘furloughed’. Under the CJRS, employers were able to claim for furloughed workers as follows: Up to 31 July 2020: 80% of an employee’s wages, capped at £2,500 per month, plus...
ARCHIVED: This archived Practice Note is not maintained and is provided purely for background. It reviews the extended Coronavirus Job Retention Scheme ( CJRS) that applied from 1 November 2020 to 30 April 2021, described here as the ‘extended CJRS’ or the ‘ CJRS extension’. For details on the extension from 1 May 2021, see Practice Note: Coronavirus Job Retention Scheme (extended version 1 May to 30 September 2021) [ Archived]. Background to the extended CJRS 31 October 2020: HM Treasury announced a November 2020 extension of the CJRS and deferred the start of the Job Support Scheme. See: Furlough Scheme Extended and Further Economic Support announced; Employment aspects of the new coronavirus lockdown and the extension of the CJRS (2/11/20). 2 November 2020: Announcement that the extended CJRS would operate until 2 December 2020. Sources: HMRC Help and Support bulletin (3 November 2020 at...
Statement of Changes HC 813 Skilled workers Qualification requirements On 22 October 2020, the Home Office unveiled extensive amendments to the Immigration Rules in HC 813, issued with an Explanatory Memorandum. These changes brought in many elements of the Home Office’s ‘ Future Points- Based Immigration System’, with most provisions commencing on 1 December 2020. HC 813 marked the first major phase in simplifying the Immigration Rules: numerous routes were introduced or revised in a single, consolidated format, aligning with aspects of the Law Commission’s recommendations. The Explanatory Memorandum explained that, when a route is simplified, it is inserted into the Rules as an Appendix to reduce complicated cross-references; this is a temporary arrangement and, once consolidation and simplification are complete, routes will sit within the main body as separate Parts. This Practice Note offers a high-level summary of the...
The Bribery Act 2010 ( BA 2010) Enacted to secure the UK’s adherence to the Organisation for Economic Co-operation and Development’s ( OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the Bribery Act 2010 ( BA 2010) delivers an effective framework to address corruption across public and private spheres, updating the UK’s anti-corruption regime and supplanting Prevention of Corruption Act 1906 and Prevention of Corruption Act 1916. BA 2010 carries significant consequences for any company incorporated in, or trading from, the UK. Its global reach covers bribery undertaken by a business, or by third parties acting for it, regardless of where in the world the conduct occurs......
Under the Transfer of Undertakings ( Protection of Employment) Regulations 2006, SI 2006/246 ( TUPE), a move of an undertaking from one organisation (the transferor) to another (the transferee) can arise in several situations, such as: a business sale at the beginning or the end of an outsourcing an internal reorganisation within an employer’s group (where the employing entity changes) a management buy-out the establishment or ending of a franchise These are circumstances in which TUPE may operate in practice. For further information, see Practice Note: TUPE—an overview for pensions lawyers. Considerations relevant to determine level of pension provision post- TUPE transfer When determining the pension benefits a transferee employer must make available to staff who move across, the transferee should assess the minimum pension provision it is legally obliged to put in place for those...
THIS PRACTICE NOTE APPLIES TO OCCUPATIONAL AND PERSONAL PENSION SCHEMES Automatic statutory transfer of terms and conditions of employment In private sector outsourcings, staff moving to a Supplier must continue on the same contractual terms after the handover as applied beforehand, in line with the Transfer of Undertakings ( Protection of Employment) Regulations 2006, SI 2006/246 ( TUPE), save that a specific pensions exception applies in practice. Which benefits fall within the pensions exception?......
FORTHCOMING DEVELOPMENT : Section 10 of the Finance Act 2022 will increase the normal minimum pension age ( NMPA) from 55 to 57 on 6 April 2028 (save for members of the firefighters, police and armed forces public service pension schemes). It will additionally grant members of registered pension schemes the ability to draw benefits before turning 57 where, on or before 4 November 2021, they already held an unqualified right to take benefits, or were progressing a substantive transfer to a scheme that, on or before 4 November 2021, provided an unqualified right to a protected pension age below 57. To rely on the new 2028 protection, the scheme’s rules must, on 11 February 2021, have contained an unqualified right to access benefits before age 57. For more detail, refer to Practice Note: Increasing the normal minimum pension age ( NMPA) to...
When a business or asset acquisition constitutes a relevant transfer under the Transfer of Undertakings ( Protection of Employment) Regulations 2006 ( TUPE 2006), SI 2006/246, the purchaser effectively replaces the seller in relation to staff assigned to the undertaking, inheriting all associated rights and obligations—see: Effect of TUPE 2006 below. As with share deals, the default position on a company’s business and asset acquisition is the maxim caveat emptor (let the buyer beware). In a relevant transfer under TUPE 2006, the seller must provide specified employee liability information ( ELI) to the buyer (see: Employee liability information ( ELI), below). Other than that duty, the seller has no obligation to reveal any defects, issues or liabilities affecting the business. Consequently, the buyer must carry out its own enquiries, instructing its advisers to conduct due diligence on commercial, tax, financial and legal aspects...
Practice Note This Practice Note explores the moderated operation of the Transfer of Undertakings ( Protection of Employment) Regulations 2006, SI 2006/246 ( TUPE 2006) when insolvency arises. Significant elements of TUPE 2006 fulfilled the UK’s EU duty to give effect to Directive 2001/23/ EC, the Acquired Rights Directive ( ARD). Up to 1 January 2024, the pertinent provisions were classed as retained EU-derived domestic law under the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018). From 1 January 2024, the Retained EU Law ( Revocation and Reform) Act 2023 reclassifies such EU-derived domestic legislation as ‘assimilated’ law, reflecting the removal, in general terms, of EU interpretive effects (for example, EU law supremacy, directly effective rights, and the general principles formerly preserved by the EU( W) A 2018). For additional detail, see Practice Note: Assimilated law. This Practice Note also cites...
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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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