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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 outlines the passporting entitlements and associated notification obligations of insurance undertakings based in the EEA under Directive 2009/138/ EC (the Solvency II Directive). The Treaty and Solvency II The Treaty on the Functioning of the European Union ( TFEU) provides the overarching framework for freedom of establishment and the free movement of services within the EU. In the financial services sphere, including insurance, these freedoms are further detailed by the Single Market Directives. The regulatory regime for EEA life and non-life insurers and reinsurers—covering supervision, solvency, risk management, governance, reporting and passporting—is set out in the Solvency II Directive, supported by Commission Delegated Regulation ( EU) 2015/35 (the Solvency II Delegated Regulation) together with applicable Implementing and Regulatory Technical Standards ( RTS). Under Solvency II, an insurance undertaking that has secured authorisation from its home state regulator may exercise the right of...
This Practice Note outlines the principal features of Directive 2009/65/ EC, as amended ( Undertakings for Collective Investment in Transferable Securities ( UCITS) Directive), including the UCITS regulatory framework, the authorisation process, operating UCITS on a cross-border basis, UCITS management companies, master-feeder structures, depositaries, remuneration, and investment information... What is a UCITS fund? UCITS funds are authorised open-ended investment vehicles that can be marketed to retail investors throughout the EU, provided they comply with, for example, the Directive’s rules on diversification and eligible investments. EEA UCITS funds must be both managed and domiciled within the EEA... Definition and requirements of a UCITS fund Article 1 of Directive 2009/65/ EC (the UCITS Directive) defines a UCITS as an undertaking that has: the sole purpose of collective investment in transferable securities or certain other liquid financial assets using capital raised from the public, operating on the...
This Practice Note explores the concept of tied agents within the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II). It also sets out the obligations for firms that appoint a tied agent or an EEA tied agent, and summarises the passporting framework for tied agents. For information on the broader passporting regime under Mi FID II, see Practice Note: Exercising passport rights under EU Mi FID II. For details on options available to third-country firms seeking to access the EEA market, see Practice Note: EU Mi FID II & Mi FIR—third-country regime. regime Mi FID II sets out a regime for tied agents and requires Member States to have a tied agents regime in place. Under Mi FID II, a ‘tied agent’ is a natural or legal person who, under the full and...
OTC derivatives and ETDs Derivatives fall into two principal categories: over the counter ( OTC) derivatives, and exchange traded derivatives ( ETDs) OTC derivatives can be further divided into: non-cleared OTC derivatives, and cleared OTC derivatives, which combine characteristics found in both non-cleared OTC derivatives and ETDs For additional detail on OTC derivatives and ETDs, see Practice Notes: OTC and exchange traded derivatives—key features and concepts and OTC and exchange traded derivatives—documentation. Why are derivatives regulated? Derivatives trading is a significant area of financial activity and has long been regulated—however, the purpose and scope of that regulation shifted after the 2007–2008 global financial crisis. Before the crisis, in broad terms: ETDs were regulated because they were traded on public exchanges and there was a wish to protect market users and the public from fraud, manipulation, and abusive practices, but OTC...
This Practice Note summarises the organisational and conduct of business obligations under Directive ( EU) 2016/97, the Insurance Distribution Directive ( IDD), which superseded the Insurance Mediation Directive (2002/92/ EC) ( IMD) from 1 October 2018. For further detail on the IDD, see: EU Insurance Distribution Directive ( IDD)—essentials EU Insurance Distribution Directive ( IDD)—scope, registration, passporting and sanctions EU Insurance Distribution Directive ( IDD)—insurance-based investment products EU Insurance Distribution Directive ( IDD)— Insurance Product Information Document requirements IDD organisational and conduct of business requirements—overview The IDD prescribes organisational and conduct standards for insurance and reinsurance distributors, encompassing insurance and reinsurance intermediaries, ancillary insurance intermediaries, insurers and reinsurers. The requirements include: professional standards to ensure those selling insurance to consumers are competent, covering knowledge and ability, training and development, good repute and record-keeping obligations on insurance and...
Article 101(1) TFEU and Article 102 TFEU bite only on market behaviour—whether agreements/concerted practices or unilateral action—that is liable to appreciably influence trade between EU Member States. This operates as a jurisdictional filter, deciding whether EU or national competition law governs the conduct. Where there is no cross‑border ‘effect on trade’, national rules may apply—for example, French competition prohibitions where the impact is confined to France. The European Commission and the EU Courts have read the inter‑state clause broadly, with the result that Articles 101(1) and 102 can capture national agreements or conduct where there is some foreclosure or an effect on imports. In practice this threshold is a low one. In addition, the inter‑state condition matters less now that all Member States have competition regimes modelled on EU law, so there is little practical difference as to whether EU or Member State law...
Article 29 of Regulation ( EU) 1215/2012, Brussels I (recast) This Practice Note reviews the rules in Article 29 of Regulation ( EU) 1215/2012, Brussels I (recast) that govern multiple proceedings, in particular parallel actions concerning the same cause of action between the same parties. It outlines how courts address such situations and includes illustrations of the way these disputes are handled in practice. The equivalent provisions formerly appeared in Article 27 of Regulation ( EC) 44/2001, Brussels I. Although the recast Regulation introduces certain adjustments to what was contained in Brussels I, the case law on Article 27 of Regulation ( EC) 44/2001 will continue to guide the construction and application of Article 29 of Regulation ( EU) 1215/2012, Brussels I (recast). This approach is reflected in Recital (34) of Regulation ( EU) 1215/2012, Brussels I (recast), which stresses the need for...
No medicinal product can be marketed until it has obtained approval known as a marketing authorisation ( MA). An MA specifies the authorised indications, the patient population and the dosage, together with any conditions placed on the MA holder ( MAH). The approval framework is regulated by Directive 2001/83/ EC on the Community Code relating to medicinal products for human use (the Pharmaceutical Code). There are several routes to secure an MA for medicinal products: EU centralised procedure ( CP), with medicines approved via the CP often termed centrally authorised products ( CAPs) Mutual recognition procedure ( MRP) Decentralised procedure ( DCP) National procedure The appropriate route is determined by the product’s nature, therapeutic area and the type of licence required (ie where the product is to be sold and whether licences already exist in other EU/ EEA Member States). There are also several different legal bases on which an MA...
ARCHIVED: This Practice Note is archived, not maintained, and provided for background use only. For further details on the Prospectus Regulation, see Practice Note: The UK Prospectus Regulation—essentials [ Archived]. Introduction to the Prospectus Regulation roadmap The Prospectus Regulation ( EU) 2017/119 ( PR) was published in the Official Journal of the European Union on 30 June 2017 and took effect on 20 July 2017, with most provisions applying from 21 July 2019. The PR materially revises the prospectus publication obligations contained in the Prospectus Directive 2003/71/ EC (the PD). As a regulation, it has direct applicability across Member States. This Practice Note sets out an article-by-article roadmap of the PR, detailing for each article: the article title and number, and the corresponding PD provisions For additional guidance on the PR, see Practice Notes: The UK Prospectus...
ARCHIVED: This Practice Note has been archived and is not maintained. Last updated March 2021 Tracker overview This Transparency Directive tracker sets out recent legislative and regulatory changes relating to the TD, alongside relevant background materials and subsequent amending and implementing measures from 2001 to the present. It also covers Q& As, recommendations and technical advice issued by ESMA (which succeeded CESR). A list of abbreviations for the tracker is available here. This Practice Note is split into the following sections: Key documents and abbreviations Recent and future developments (2015 onwards) Review and further implementation of the TD (2010–2014) Implementation of the TD (2004–2010) Development of the TD (2001–2004) The TDAD (as adopted), which amended the TD (as adopted), had an implementation deadline of 26 November 2015. For further details, see Recent and future developments (2015 onwards) below. Key documents and abbreviations The following are key materials regarding the...
The notion of concerted practice set out in Article 101(1) TFEU empowers the European Commission ( Commission), national competition authorities, and national courts to forbid particular kinds of anti‑competitive conduct among undertakings that fall short of an agreement in this field. For an overview of Article 101(1) TFEU, see further, The prohibition on restrictive agreements, for present purposes. Concept of concerted practices: definition and underlying rationale Article 101 TFEU distinguishes between agreements between undertakings, decisions by associations of undertakings (which we do not address here), and concerted practices. An agreement presupposes that the parties subscribe to a common plan that restricts, or is liable to restrict, their independent commercial conduct by determining how they will act or refrain from acting on the market. By contrast, a concerted practice captures undertakings that knowingly engage in collusive behaviour to lessen uncertainty in the...
ARCHIVED: This Practice Note has been archived and is not maintained. On 10 May 2022, the Commission introduced the Vertical Block Exemption Regulation 2022/720 ( VBER 2022), which superseded the earlier Vertical Restraints Block Regulation 330/2010 ( VBER 2010, also referred to as the VRBE in this Practice Note) with effect from 1 June 2022. This Practice Note was prepared for the VBER 2010. NOTE— The VBER 2010 expired on 31 May 2022 and was replaced by the VBER 2022 on 1 June 2022. Under Article 10 VBER 2022, a 12‑month transition (ending 31 May 2023) applied to pre‑existing vertical agreements in force on 31 May 2022 that complied with the exemption conditions under the VBER 2010 on that date but did not meet the exemption conditions under the VBER 2022. Accordingly, this Practice Note is provided for background only. For...
On 20 July 2017, the Prospectus Regulation ( EU) 2017/1129 entered into force across the EU. It became fully effective in all EU member states (which then included the UK) on 21 July 2019, although certain exemptions from the prospectus publication requirement applied from July 2017 and July 2018. The Prospectus Directive was fully repealed on 21 July 2019. For further detail on the Prospectus Regulation, see the Practice Notes: Prospectus requirements ( UK Prospectus Regulation)—fundamentals; The UK Prospectus Regulation—essentials [ Archived]; and Prospectus Regulation and Prospectus Directive comparison and analysis. This Practice Note is maintained for reference only and sets out the law as at 19 July 2017, before the Prospectus Regulation took effect and before the UK’s withdrawal from the EU. It offers a concise summary of the (now repealed) Prospectus Directive, its development, content and UK...
BREXIT: As at 31 January 2020, the UK ceased to be an EU Member State and moved into an implementation period, during which the EU continues to treat it as a Member State for many purposes. As a third country, the UK can no longer take part in the EU’s political institutions, agencies, offices, bodies and governance structures (save to the limited extent agreed), yet it must still meet its obligations under EU law (including EU treaties, legislation, principles and international agreements) and accept the ongoing jurisdiction of the Court of Justice of the European Union in line with the transitional arrangements in Part 4 of the Withdrawal Agreement. For further reading, see: Brexit—introduction to the Withdrawal Agreement. This affects this Practice Note. For guidance, see Practice Note: Brexit—impact on finance transactions [ Archived]— Brexit planning and impact—key issues for debt capital markets...
EU sector inquiries EU sector inquiries under Article 17 of Regulation 1/2003 are economy-wide examinations triggered when there are doubts that markets function properly, yet without signs of illegal conduct by specific firms. Such exercises survey whole industries to diagnose structural or behavioural issues affecting competition, even where no single business appears to have infringed the rules. In essence, they collect market information on a broad scale to understand whether conditions, pricing or trade flows point to malfunctioning dynamics. Their focus is sectoral, not on particular companies alone. Historically, their legal foundation lay in Article 12 of Regulation 17/62—chiefly an evidence-gathering device that saw little deployment. Only two were undertaken in the 1960s, covering margarine and brewing. The approach evolved in 1999 when the Commission launched a three-stage review of telecommunications, foreshadowing contemporary practice. Today, Regulation 1/2003 supplies the prevailing legal basis,...
Undertakings engaged in competition matters, including merger investigations, before the European Commission (the Commission) benefit from rights of defence that safeguard their interests throughout the process. Respect for these rights by the Commission is a core tenet of EU law and has been reinforced by the entry into force of the Treaty of Lisbon, which makes the EU Charter of Fundamental Rights ( CFR) legally binding and provides for the EU’s accession to the European Convention on Human Rights ( ECHR). Together, these instruments strengthen the legal framework within which the Commission must act. Rights of defence in Commission antitrust proceedings Several procedural measures adopted by the Commission during antitrust proceedings may have a lasting adverse impact on undertakings’ rights of defence. In view of this, Regulation 1/2003 aims at striking an appropriate balance between: (i) the effective enforcement of EU antitrust rules and (ii) the...
When a dominant undertaking can offer rebates to persuade customers to buy from it remains among the most intricate and disputed issues under Article 102 TFEU. Such discounts—common in everyday trading—can improve efficiency. Yet making rebates available to buyers of a dominant supplier can impede rivals from wooing those buyers, thereby shoring up the supplier’s market power. In theory, one can reconcile these aims by examining a scheme’s effects, but doing so generally entails detailed fact-finding, leaving businesses uncertain in advance whether a particular programme will breach the law. A long-standing debate concerns how far the European Commission ( Commission) may censure rebates by their very form, without more, or whether it must first show, in the case’s specific context, that they are liable to cause anti-competitive harm. Determining if, and in what situations, such incentives warrant condemnation lies at the core of...
The European Commission ( Commission) wields wide-ranging powers to investigate suspected anti-competitive behaviour (covering infringements of Articles 101 and 102 TFEU, as well as alleged breaches of the EU Merger Regulation). It may, among other measures, carry out unannounced inspections at the premises of any undertaking within the EEA. Two types of inspections Article 20 of Regulation 1/2003 establishes two forms of ‘dawn raid’: inspections grounded in a binding decision, to which undertakings are legally obliged to submit; failure may result in being compelled to comply and exposure to penalties, and inspections based on written authorisation, which undertakings may decline without risking the imposition of penalties. Submission cannot be partial or conditional. The existence of a right to object does not mean that, if an undertaking consents, the inspection will be conducted any less rigorously than one ordered by decision. These two options are...
Introduction Block exemption regulations offer broadly applicable safe harbours from the EU ban on anti-competitive agreements set out in Article 101(1) TFEU, provided the agreement meets the criteria of the relevant block exemption regulation. Each block exemption rests on the assumption that any restrictive agreement within its scope satisfies the four conditions in Article 101(3) TFEU required for an individual exemption from the application of Article 101(1) TFEU (see further, Article 101(1) TFEU—the prohibition on restrictive agreements and Individual exemptions under Article 101(3) TFEU). Accordingly, every block exemption regulation creates a safe harbour that shields restrictive arrangements from legal challenge under Article 101 TFEU. The former Research & Development Block Exemption Regulation ( EU) 1217/2010 ( R& D 2010), which expired on 30 June 2023, had applied since 1 January 2011. Following a review and engagement with stakeholders, the updated Research &...
The EU merger control framework, set out in the EU Merger Regulation ( EUMR), rests on the ‘one‑stop shop’ principle for overseeing concentrations within the EEA. It vests the European Commission (the Commission) with exclusive jurisdiction to assess transactions that amount to a concentration (as defined in Article 3 EUMR) and that meet the turnover thresholds in Article 1(2) or (3) EUMR (and therefore have an EU dimension). Consequently, by virtue of Article 21(3) EUMR, Member States are barred from applying their national competition laws to such EU‑dimension concentrations. The EUMR seeks to streamline the review of certain large‑scale, pan‑ European deals before a single authority (ie, the Commission), rather than exposing them to potentially duplicative assessments by multiple national competition authorities across the EU. It also provides referral mechanisms between the Commission and Member States to ensure 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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