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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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This Practice Note examines the EU conflict minerals framework which, through third-party audits and reporting on supply chain due diligence, aims to curb the funding of armed conflict via mineral trading. Background Responsible sourcing has become a key facet of supply chain management. Practitioners must anticipate and answer the expectations of non-governmental organisations ( NGOs), customers, shareholders and regulators that companies understand the origin of every material and component in their products, and tackle the human rights impacts of their operations and supply chains. Procuring high-value minerals from conflict-affected and high-risk regions remains among the toughest supply chain issues. To tackle this, in 2010 the US Congress inserted a provision into the Dodd- Frank Wall Street Reform and Consumer Protection Act ( Dodd- Frank Act) directing the Securities and Exchange Commission ( SEC) to craft a rule to sever links between trade in certain minerals from central Africa and...
ARCHIVED: This Practice Note is archived and no longer maintained. On 10 May 2022, the Commission introduced the Vertical Block Exemption Regulation 2022/720 ( VBER 2022). From 1 June 2022, VBER 2022 superseded the earlier Vertical Restraints Block Exemption Regulation 330/2010 ( VBER 2010, also termed the VRBE in this Practice Note). This Practice Note was prepared with reference to VBER 2010. Note: VBER 2010 lapsed on 31 May 2022 and was replaced by VBER 2022 with effect from 1 June 2022. Under Article 10 of VBER 2022, a 12-month transitional period (ending 31 May 2023) applied to pre-existing vertical agreements in force on 31 May 2022 that satisfied the exemption conditions under VBER 2010 on that date but did not meet the exemption requirements of VBER 2022. Consequently, this Practice Note is supplied for background information only......
The principle of economic continuity allows the European Commission (the Commission) to assign liability for a breach of EU competition law to a legal person that did not itself carry out the infringement. Although often portrayed as an exception to the principle of personal responsibility, its application is confined within strict limits set by the EU Courts. Rationale behind the economic continuity principle Responsibility for a competition law infringement is, in principle, personal, given the nature and seriousness of the penalties that may follow. Consequently, the Commission usually attributes liability to the legal person that operated the infringing business when the conduct occurred (the initial operator): this reflects the principle of personal responsibility. However, in certain situations, a rigid, formal application of personal responsibility can impede effective enforcement, for instance where the initial operator no longer exists or has undergone...
ARCHIVED: Revised Horizontal Guidelines were published in the Official Journal on 21 July 2023. This Practice Note was produced with the previous Horizontal Guidelines in mind and is no longer maintained. For up to date content, please refer to the relevant section in Practice Note: Analysing horizontal co-operation agreements under EU competition law. Standardisation (or standard-setting) is widely practised and has a pivotal role across many industries and in society more broadly, delivering clear advantages, such as: stimulating innovation assuring product quality and safety enabling interoperability/compatibility reducing transaction costs Agreements on standards primarily seek to establish technical or quality requirements that current or future production processes, methods or products must meet, for instance to ensure compatibility between products designed to work together. Standardisation agreements may cover a range of matters, including harmonising different grades or sizes of a particular product, or setting...
There are many legitimate grounds for companies to enter agreements that include terms or obligations which may curb competition. This is particularly so where the arrangement is put in place to create or foster beneficial outcomes—so‑called ‘efficiencies’—that would not arise without the restriction. In broad terms, such efficiencies stem from vertically or horizontally aligned businesses collaborating to achieve something that, on their own, they could not accomplish—or at least not as efficiently—owing to financial, technical and/or logistical constraints. Research and development, production, purchasing, and distribution/sales constitute distinct stages in the supply chain, with firms at each step deciding whether to undertake the process alone or with others. When collective rather than individual action is optimal, the parties may agree to restraints or obligations considered necessary to safeguard an investment connected to, for instance: the development of a...
Intellectual property ( IP) agreements IP arrangements—such as technology licensing or collaborating on the creation of new technologies—can restrict competition. Yet their pro‑competitive advantages are acknowledged through block exemptions that offer a ‘safe harbour’ from Article 101, TFEU. Where a deal sits squarely within a relevant block exemption, only a brief review of Article 101, TFEU concerns is typically required. In practice, though, multiple block exemptions may seem to apply, and confirming that an agreement truly benefits from a safe harbour can be challenging—so a more pragmatic assessment of everyday commercial deals is often warranted. Most block exemptions share a common framework, and understanding this helps with application of the rules. Recitals: set out the overarching aim and rationale of the instrument. Definitions: clarify key terms that shape how the exemption should operate. Scope of the ‘safe harbour’:...
What is copyright? Copyright safeguards the author’s original expression of ideas, not the ideas themselves. It does not hand the copyright owner a monopoly. Consequently, works that are alike or even identical may lawfully coexist provided they are not unauthorised reproductions. In the EU and the UK, protection arises automatically and requires no registration. In general, copyright protects original: musical, dramatic, literary and artistic works (all of which must be fixed in some form) sound recordings films typographical arrangements of published editions and broadcasts databases (which may fall under a database right or copyright) source code, user code and preparatory design material, and in some cases a user interface, logic, algorithms or programming languages Exhaustion of rights and parallel trade within the EEA Existence v exercise At the heart of the EU’s approach are rules securing the free movement of goods between Member States. Article 34 of the Treaty on the...
A joint venture is a business set-up in which two or more separate undertakings bring together, or share, their resources, assets, or divisions to build a venture or pursue a defined objective, typically over a limited timeframe, for all parties. The logic behind joint venture work is that collaboration delivers more than effort alone, whether with a supplier up the chain or a rival on the same level, through interests and strengths. EU law offers no precise legal definition of a joint venture at present. Such ventures may span merger-style initiatives creating a jointly controlled entity, with its assets, infrastructure, management and customers, through to loose, non-structural collaboration that stops short of forming a separate organisation. At one end, activity might involve light-touch and plainly harmless collaboration, confined to specific functions or tasks, such as research and development or joint purchasing; at the other, it may...
The first iteration of this note was prepared by the late Professor Alexander Türk. The limits of EU competences The scope of EU competences is defined by the principle of conferral (also called the principle of attributed powers). This principle safeguards against the Union stretching its authority beyond what the Treaties grant. As set out in Article 5(2) of the Treaty on European Union, the Union acts solely within competences bestowed on it by the Member States to achieve the Treaties’ objectives, while competences not granted to the EU remain with the Member States. A further facet of conferral concerns the division of competences among the EU institutions. Article 13(2) TEU provides that each institution operates only within the powers the Treaties confer upon it. The fact that the EU holds the capacity to intervene in a given field does not confer general law‑making power on its...
ARCHIVED: This archived Practice Note summarises the background to the European Commission’s failed efforts to create a standard single‑member private limited company model (the Societas Unius Personae, or SUP) for use throughout the European Union, spanning all Member States, together with its earlier attempts to establish a European private company as a legal vehicle ( Societas Privata Europaea, or SPE). It is no longer updated and is provided for background purposes only. Background—the proposal for a European private company ( Societas Privata Europaea or SPE) On 25 June 2008, the Commission tabled a draft Council Regulation at EU level setting out a Statute for a European private company framework. That initiative formed part of a broader suite of measures intended to help small and medium‑sized enterprises ( SMEs) operate across the EU market as intended. Following years of fruitless...
This Practice Note outlines the European Union’s Common Agricultural Policy ( CAP), covering its background, aims, financing, and the principal actions and instruments it employs. It explains how support operates under two pillars and how measures are delivered across farming and rural areas. These include: Direct income support (pillar 1) The Common Organisation of the Market, including market measures (pillar 1) Rural development policy (pillar 2) For further details on EU agricultural and food initiatives, see Practice Note: Agriculture/ Food— EU Regulatory tracker. History of the CAP History of the CAP is closely intertwined with the EU’s creation and evolution. In the post-war years, Europe faced farm shortfalls and leaned heavily on American shipments. Launched in 1962 to guarantee stable food supplies, the CAP has since undergone reforms in 1992, 1999, 2003, 2013 and 2021. Its objectives shifted away from price supports towards direct...
This Practice Note reviews Council Directive 86/653/ EEC ( OJ L 382/17), the EU Commercial Agents Directive. It outlines the meaning of commercial agent, the Directive’s scope and operation, and its effects on agency contracts. It also covers the relationship between a commercial agent and a principal under the Directive, the agent’s remuneration, and the termination of a commercial agency arrangement. For EU cases on the Directive, see Practice Note: EU Commercial Agents Directive cases—tracker. Background Historically, EU Member States applied differing rules to the rights and obligations of commercial agents and their principals, creating legal uncertainty and making it difficult in practice for market operators to rely on commercial representation across different Member States. Adopted in 1986, the Directive aimed to establish a single market for commercial representation and remove barriers to the cross-border activities of commercial agents and their...
EU Commercial Agents Directive cases tracker This tracker monitors key Court of Justice decisions connected to Council Directive 86/653/ EEC ( OJ L 382/17), the EU Commercial Agents Directive. For added detail on the Directive, see Practice Note: The EU Commercial Agents Directive. Scope of the ‘commission lost’ by the commercial agent for the calculation of the indemnity payment Case: QT v O2 Czech Republic AS, Case C-574/21 Date: 23 March 2023 This decision addresses how to compute the indemnity owed to commercial agents when an agency agreement ends. Under Article 17(2) of Directive 86/653/ EEC, Member States must provide that, in specified situations, agents are entitled to an indemnity on termination or expiry of the agency arrangement. The judgment clarifies which commissions are to be counted in that calculation. The Court of Justice confirmed that the indemnity should reflect...
Competition concerns arising from collective dominance and oligopolies can be addressed under EU competition law, namely: Article 101 TFEU Article 102 TFEU the EU Merger Regulation ( EUMR) This Practice Note examines collective dominance and oligopoly matters outside Article 101 TFEU. The idea of collective dominance has developed through case law under Article 102 TFEU and the EUMR. While the case law indicates the concept is alike under both, there are key differences in the assessment undertaken in each setting. Collective dominance and Article 102 TFEU Article 102 TFEU prohibits abuses by one or more undertakings of a dominant position (see further, The prohibition on abuse of dominance). EU case law confirms Article 102 TFEU also covers abuses where a dominant position is held collectively by several undertakings that may not, individually, be dominant. To establish an abuse of collective dominance contrary to Article 102 TFEU, it...
Background and key developments Regulation ( EC) No 1272/2008—the EU Classification, Labelling and Packaging ( CLP) Regulation—puts into practice the United Nations’ Globally Harmonised System for classifying and labelling chemicals ( UN GHS) within the EU. determine which characteristics of substances and mixtures require them to be classified as hazardous, and ensure customers receive appropriate communication of that classification The EU CLP Regulation has applied since 20 January 2009 (with phased transition periods running to 2015) and is directly binding on suppliers that manufacture, import, use or distribute chemical substances and mixtures. This Practice Note addresses the classification regime under the EU CLP Regulation. For further guidance on other elements of the EU CLP framework, see Practice Notes: EU classification, labelling and packaging of substances and mixtures ( CLP): Regulation ( EC)...
Key information EU CLP Regulation: Regulation ( EC) 1272/2008 of the European Parliament and of the Council of 16 December 2008 on the classification, labelling and packaging of substances and mixtures ( EU CLP Regulation) Entry into force: 20 January 2009 Applicability: Substances placed on the market since 1 December 2010; mixtures placed on the market since 1 June 2015 Transposition deadline: Not applicable, as Regulations have direct effect and do not require incorporation into national law Repeals: From 1 June 2015, the EU CLP Regulation entirely replaced the previous system under the Dangerous Substances Directive 67/548/ EEC ( DSD) and the Dangerous Preparations Directive 1999/45/ EC ( DPD), both now ceased. For further detail, see Practice Note: Classification, packaging and labelling of dangerous substances prior to implementation of the CLP Regulation ( EC) No...
Background and key developments Regulation ( EC) No 1272/2008, known as the EU Classification, Labelling and Packaging ( CLP) Regulation, gives effect to the United Nations’ Globally Harmonised System for classifying and labelling chemicals ( UN GHS) within the EU. Its principal purposes are to: determine which characteristics of substances and mixtures warrant a hazardous classification, and ensure this identification is communicated appropriately to customers The EU CLP Regulation has applied since 20 January 2009 (with staged transition periods up to 2015) and is directly applicable to suppliers that manufacture, import, use or distribute chemical substances and mixtures. This Practice Note addresses the packaging requirements under the EU CLP Regulation. For details on other elements of the EU CLP framework, see Practice Notes: EU classification, labelling and packaging of substances and mixtures ( CLP): Regulation ( EC)...
Background and key developments Regulation ( EC) 1272/2008—the EU Classification, Labelling and Packaging ( CLP) Regulation—gives effect in the EU to the United Nations’ Globally Harmonised System on the classification and labelling of chemicals ( UN GHS), aligning EU requirements with that framework. identify which properties and characteristics of substances and mixtures should result in a classification as hazardous, and ensure that adequate communication of that identification is provided to the customers The EU CLP Regulation entered into force on 20 January 2009 (subject to various transition periods up to 2015) and it is directly applicable to suppliers who manufacture, import, use or distribute chemical substances and mixtures. This Practice Note covers the rules governing notification under the EU CLP Regulation. For more information on other aspects of the EU CLP regime, please see the following Practice Notes: EU classification, labelling and packaging of substances and mixtures ( CLP):...
Background and key developments Regulation ( EC) 1272/2008—the EU Classification, Labelling and Packaging ( CLP) Regulation—gives effect to the United Nations’ Globally Harmonised System for classifying and labelling chemicals ( UN GHS) across the EU. The principal aims of the EU CLP Regulation are to: determine which characteristics of substances and mixtures warrant a hazardous classification; and ensure that this identification is communicated appropriately to customers. The EU CLP Regulation took effect on 20 January 2009 (with various transition periods extending to 2015) and applies directly to suppliers that manufacture, import, use or distribute chemical substances and mixtures. This Practice Note addresses the labelling requirements under the EU CLP Regulation. For details on other parts of the EU CLP framework, see the following Practice Notes: EU classification, labelling and packaging of substances and mixtures ( CLP): Regulation ( EC)...
This Practice Note looks at Regulation ( EU) 536/2014, the EU Clinical Trials Regulation ( CTR), which governs clinical trials in the EU. It outlines the principal features of the CTR that trial sponsors and pharmaceutical businesses need to understand in practice and keep in view for compliance, and to keep abreast of. Taking effect on 31 January 2022, the CTR applies directly across every EU Member State and the EEA, marking the most significant overhaul of the EU’s clinical trial legal framework since 2001, and is now in force without exception. Its reach is truly global: any interventional study conducted even in part within an EU Member State or the EEA must follow this regime throughout the entire trial life cycle, at all times, from start to finish. Because the UK had exited the EU before it became operative, the CTR does not extend to...
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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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