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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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Contractual set-off Set-off gives Party A, to whom Party B owes money, the means to secure payment by netting the sum due against Party A’s separate liability to Party B arising from another dealing. Where a creditor and debtor have mutual transactions, the creditor may deduct from the debt owed to them any amount they themselves owe to the debtor. See Practice Note: What is set-off and when is it available? Contractual set-off is one of the five principal types identified in Practice Note: Types of set-off. It arises where the parties have created a right of set-off by an express contractual term. Parties use it to widen or restrict the set-off rights available at general law; however, it cannot change the scope or operation of insolvency set-off, which applies mandatorily despite any contractual arrangement between the parties—see Practice Note: Types of set-off—...
Construction and O& M disputes in energy projects—case tracker This Practice Note points readers to the Construction case tracker, outlining major and pivotal rulings in construction-related disputes (including......
Issue Details The Comprehensive Nuclear- Test- Ban Treaty ( CTBT) Parties: 178 (187 signatories) Adopted: 10 September 1996 Opened for signature: 24 September 1996 Entry into force: Not yet in force — requires ratification by all Annex 2 States Subject: Prohibition of all nuclear explosions What is the status of the Treaty? The Treaty will not take effect until every Annex 2 State has ratified it. These countries participated in CTBT negotiations from 1994–96 and had nuclear power or research reactors at that time. Annex 2 States: Algeria, Argentina, Australia, Austria, Bangladesh, Belgium, Brazil, Bulgaria, Canada, Chile, China, Colombia, Democratic People's Republic of Korea, Egypt, Finland, France, Germany, Hungary, India, Indonesia, Iran ( Islamic Republic of), Israel, Italy, Japan, Mexico, Netherlands, Norway, Pakistan, Peru, Poland, Romania, Republic of Korea, Russian Federation, Slovakia, South Africa, Spain, Sweden, Switzerland, Turkey, Ukraine, United Kingdom of Great...
What is the policy and legislative background to the support for community energy projects? Legal and policy backing for community energy schemes is comparatively new; although early pledges prompted some movement, progress then remained modest for several years. A concise overview follows. The Community Energy Strategy arose from a 2010 Liberal Democrat manifesto promise to ‘encourage community-owned renewable energy schemes where local people benefit from the power produced’. That pledge appeared, unchanged, in The Coalition: programme for government. In 2014 the then coalition administration, through the former Department of Energy and Climate Change ( DECC), issued the UK’s first Community Energy Strategy. DECC then released an update in March 2015. Like the original, the update emphasised enabling localities to make their own advances towards a more decentralised energy system with active community involvement. Further information on the Strategy update is set out in the...
The global commodities market The global commodities market spans a broad spectrum of goods, usually classified as hard or soft commodities. ‘soft commodities’—typically harvested outputs such as wheat, sugar, cocoa, soya beans or corn ‘hard commodities’—materials extracted from the earth, including precious or base metals, rubber, and energy products like oil Trading relies on uniform benchmarks—deliverable grades and standardised pricing by weight—so participants can purchase without inspection, assured the goods conform to recognised standards. What are commodity derivatives? Commodity derivatives are financial instruments whose value is derived from the price of a traded commodity, with payments or physical delivery contingent on how that price moves. They can be traded over the counter or on an exchange—see Practice Note: The nature of financial derivatives— Over‑the‑counter or exchange traded derivatives. These products let investors gain exposure to commodities without owning the underlying physical goods. As with other...
This Practice Note This Practice Note explains how information set out in a document, or a statement given by or on behalf of a person, can be relied upon where authenticity must be verified in a commercial setting. It outlines the principal ways to validate information and documents, indicates when statutory declarations, oaths, affirmations and affidavits are appropriate, how to check they have been properly prepared, and offers guidance for practitioners when employing these validation methods. It sets out the requirements for: Statutory declarations Oaths Affirmations Affidavits Formalities for administering statutory declarations, oaths, affirmations and affidavits Statutory declarations and affidavits out of jurisdiction For information on notaries, their purpose, steps required to notarise a document and the meaning of legalisation, see Practice Note: Notaries and notarisation. For guidance on certified copies, including what a certified copy is, when a...
CASE HUB ARCHIVED –this archived case hub reflects the position at the date of the decision of 10 October 2018; it is no longer maintained. See further, timeline. Case facts Outline of a UK merger probe into the proposed combination of SSE Retail and Npower. The deal presents horizontal overlaps in the supply of energy to domestic retail customers. Latest developments On 10 October 2018, the CMA published its final report, approving the merger without remedies following a detailed phase 2 review. Parties SSE Retail is the household energy and services arm in Great Britain of SSE plc ( SSE). Npower Group plc ( Npower) supplies energy to British homes and businesses and is owned by innogy SE (innogy). Market(s) Provision of electricity and gas in Great Britain. Background Announced on 8 November 2017, SSE Retail and Npower intended to combine into a new entity, to be owned 65.6% by SSE’s...
ARCHIVED: This Practice Note has been archived and is not maintained. It examines the impact of Brexit on commercial contractual clauses ahead of IP completion day. For details on how IP completion day affects commercial clauses, see Practice Note: What does IP completion day mean for contract clauses? The UK’s withdrawal from the EU on exit day, the implementation period, and the time beyond create a range of implications for the drafting, negotiation, and enforcement of contracts governed by English law. This Practice Note focuses on the potential effects that Brexit may have on business-to-business ( B2B) commercial contract clauses specifically. In particular, it assesses whether Brexit might influence, alter, or give rise to a need for: warranty clause hardship clause force majeure clause business continuity clause price variation clause For the impact that Brexit may have on the drafting, negotiation and enforcement of B2B boilerplate clauses, see Practice Note:...
Practice Note This Practice Note offers practical guidance for general commercial practitioners on matters to weigh up when drafting a business-to-business agreement or arrangement intended to minimise the harmful consequences of unforeseen events, shifts in the economic climate, crisis, disaster, or other circumstances beyond the contracting parties' control. It is equally pertinent for practitioners when preparing a contract during a force majeure or other ongoing disruptive event. The Practice Note also examines illegality, hardship, business continuity, rights to terminate, and key risk-mitigation clauses, including those addressing price variation, currency exchange fluctuations, indemnities, insurance, and contract review. For a concise 'how to' guide on preparing contracts to cover unforeseen events that signposts relevant content, with links to potentially relevant issues such as clauses dealing with force majeure, and other commercial and practical considerations, see Practice Note: How to draft a contract to cover...
Oil & Gas M& A— SPA risk allocation Introduction During the due diligence phase, any matter that causes concern will be highlighted in the relevant teams’ reports (legal, technical, financial), together with recommendations on the most effective way to address it. Such reports identify the concerns, cite the responsible legal, technical and financial teams, and set out how best to resolve them. For broader guidance on diligence topics in oil and gas deals, see Practice Note: Due diligence and warranties in oil and gas M& A transactions. Commonly, the key mechanisms used within the sale and purchase agreement ( SPA) to tackle identified risks, and to apportion exposure between buyer and seller, include the...
This Practice Note offers practical guidance on the proper execution of simple contracts and deeds by administrators. An administrator may be appointed over a company, a partnership or a limited liability partnership. For additional detail, see Practice Notes: Administration—an introductory guide, Administration of a Limited Liability Partnership and Insolvency of general partnerships—administration. For the purposes of this note, we address execution solely within company administrations Quick view The summary below outlines execution formalities applicable to administrators and indicates where related precedent execution clauses can be located. For more information, navigate to the relevant document type using the links in the first column Simple contracts — By the company ( Companies Act 2006, s 43(1)(a)). Under the company’s common seal applied by the administrator ( Insolvency Act 1986, Sch 1, para 8) — Execution...
The majority of projects rest on an intricate network of contractual ties among every participant in the scheme (eg the project company, equity backers, contractors, sub-contractors, off-takers and suppliers). Collectively, these papers are generally known as the 'project documents' in practice (see: Project documents—issues for lenders—overview). In numerous schemes, the operation and maintenance contract ( O& M Contract ) often ranks among the key project documents. What is an operation and maintenance contract? In a standard project finance deal, the project company is typically a special purpose vehicle ( SPV ) established solely for the aims of the project (see Practice Note: Project finance—key project parties). Where the project company is an SPV, it typically lacks the capability to run or look after the project in-house, and therefore enters into an O& M Contract with a suitably skilled contractor (the O& M...
What is a company's constitution? This Practice Note sets out what is meant by a company’s constitution in detail. It focuses on the core element of that constitution: the articles of association. It reviews the statutory definition under the Companies Act 2006, outlines the character of the articles and distils the typical provisions found in a company’s articles. The Practice Note also addresses entrenched terms within the articles and the importance of the memorandum of association......
This Practice Note offers practical guidance on correct execution of simple contracts and deeds for unincorporated associations. Unincorporated associations arise from agreement between members who come together, typically for a non-profit purpose. Examples include sports clubs or voluntary groups. For more information, see Practice Note: Unincorporated associations. We have created a collection that serves as a comprehensive, interactive resource to help users identify and navigate the concepts and common issues involved in executing documents. Each section or phase provides practical guidance, precedent clauses and Q& As relevant to that stage. For more information, see: Execution collection. Capacity An unincorporated association has no separate legal identity, meaning it cannot enter into contracts in its own name. As a result, it has no rights, cannot assume duties and cannot own property. Property said to ‘belong’ to an unincorporated association will be vested in the leading members of the...
Introduction The strand of domestic law that originally arose from EU obligations and was captured by the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) as retained EU law ( REUL) is, from 2024, referred to as ‘assimilated law’. This change follows the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023). The new label signals notable shifts in the domestic standing and handling of assimilated law. Its objective is to advance the process of bringing former EU rules into the UK’s legal system and to support their reform... Reminder: what was retained EU law ( REUL)? To understand the move from REUL to assimilated law, it is useful to revisit REUL, which was established by EU( W) A 2018. For background on EU( W) A 2018, see Practice Note: Brexit—key legislation explained. After the Brexit...
Purpose A notices clause is frequently inserted into a contract to provide both sides with certainty and transparency around formal communications and the sending and receipt of notices between the parties to the agreement, including how they are given and received. Where no such clause appears, default statutory rules may step in (see Statutory provisions below). In the Court of Appeal in Khan v D’ Aubigny, Nugee LJ observed that a notice can be a document that imparts information as well as one that invokes or exercises a right. It is also commonly taken to mean a written notice bearing a degree of formality, though no fixed wording or prescribed format is demanded. Observing the requirements of a notices clause will often be critical across a variety of contractual contexts. By way of illustration, it typically matters when prolonging (or stopping the...
Basic principles Carbon markets sit within the discipline of economics—the analysis of how limited resources are apportioned among rival uses, as set out by Lionel Robbins ( An Essay on the Nature & Significance of Economic Science, 2nd ed., revised and extended, 1949, Ch 1.3). Through this lens, a decent environment counts as a scarce resource. The central proposition is that by conferring property rights over greenhouse gas ( GHG) emissions—by ‘pricing carbon’—market participants can allocate this resource in a cost‑effective way. Consequently, a stated emissions goal (for instance, cutting emissions by 100% by 2050) can be achieved at the lowest overall cost. Setting a carbon price creates climate‑aligned incentives: it discourages carbon‑intensive behaviour and spurs investment in the low‑carbon economy, so that when actors face the social cost of high‑carbon goods and services, they switch to lower‑carbon...
ARCHIVED: This Practice Note has been archived and is not maintained This Energy legislation tracker tool highlights significant forthcoming legislation for Energy lawyers from 1 September 2016. Entries appear in reverse chronological sequence. Measures applying solely to Wales will be marked on the tracker. The tracker is organised by jurisdiction: England and Wales European Union For legislation commencing in 2017, see: Energy legislation tracker 2017 [ Archived]. England and Wales Climate Change Agreements ( Administration) ( Amendment and Related Provision) Regulations 2016 ( SI 2016/1189) Key date: 30 December 2016 | Topics: Climate change and targets | Status: In force From 30 December 2016, the terms governing the buy-out fee for future Target Periods that must feature in Climate Change Agreements under the CCA Scheme are revised. See: LNB News...
ARCHIVED: This Practice Note has been archived and is not maintained. This Energy legislation tracker presents key forthcoming legislation of interest to energy lawyers from 1 January 2018. It is organised by the following jurisdictions: England and Wales European Union Items are listed in reverse chronological order. Legislation applying only to Wales ( Wales Statutory Instruments— Wales SI) is marked on the tracker. Instruments laid in 2017 that commenced in 2018 are included in the Energy legislation tracker 2017 [ Archived]. For our tracker outlining expected future dates for major policy/regulatory announcements in the Great Britain ( GB) energy market (including those relating to new legislation and major legislative amendments), please see our separate tracker. Brexit impact From exit day (31 January 2020) the UK ceased to be an EU Member State. Under the Withdrawal Agreement, an implementation period applies, during which EU law...
State immunity from civil proceedings in the courts of the UK This Practice Note considers state immunity in civil claims before UK courts, with a focus on matters linked to arbitration. The default position (subject to exceptions) is that states are not amenable to the jurisdiction of the UK courts. As a result, questions of state immunity may surface where a party issues a court application against a state to: challenge or appeal an arbitral award enforce an award, or seek an injunction in support of an arbitration The principal statutory regime is the State Immunity Act 1978 ( SIA 1978). This Practice Note summarises the SIA 1978 and sets out how it has been applied to court proceedings connected with arbitration. Although the SIA 1978 applies across the UK (including Northern Ireland), the authorities cited in this Practice Note are drawn from the...
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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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