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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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What is the EU Mi FID II framework? The recast Markets in Financial Instruments Directive 2014/65/ EU ( Mi FID II) alongside the Markets in Financial Instruments Regulation ( EU) 600/2014 ( Mi FIR) took legal effect on 2 July 2014, and the majority of their provisions (collectively referred to as the EU Mi FID II framework) came into application on 3 January 2018. This framework is buttressed by a suite of level 2 and level 3 measures developed under the Lamfalussy process, comprising delegated acts, technical standards, guidance and Q& A documents. Further detail is available in Practice Notes: EU Mi FID II and Mi FIR level 2 measures, and EU Mi FID II and Mi FIR level 3 measures. For an article-by-article guide to Mi FID II and Mi FIR that identifies the level 2 and level 3 measures applicable to each article, consult...
Introduction to the Mi FID II level 2 and level 3 roadmap The recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU ( Mi FID II)) and the Markets in Financial Instruments Regulation ( Regulation 600/2014 ( Mi FIR)) were published in the Official Journal of the EU on 12 June 2014 and entered into force on 2 July 2014. Mi FID II and Mi FIR significantly reshaped and broadened the regulatory framework that had been established by the Markets in Financial Instruments Directive 2004/39/ EC ( Mi FID I). As amended, the majority of the Directive and the Regulation began to apply on 3 January 2018, and EU Member States had until 3 July 2017 to transpose Mi FID II into domestic law. Following the Mi FID II/ Mi FIR review, the Official Journal of the EU on 8 March 2024 set out...
Introduction to the Mi FIR level 2 and level 3 roadmap The recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II) and the Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014) ( Mi FIR) appeared in the Official Journal of the European Union on 12 June 2014 and took effect on 2 July 2014. Mi FID II and Mi FIR materially overhauled and broadened the regulatory framework first set by the Markets in Financial Instruments Directive ( Directive 2004/39/ EC) ( Mi FID I). As revised, most provisions of the Directive and the Regulation became applicable on 3 January 2018. EU Member States were given until 3 July 2017 to transpose Mi FID II into their national legislation, whereas Mi FIR applies directly in Member States. On 8 March 2024, Regulation ( EU) 2024/791 amending Mi FIR and...
The purpose of this Practice Note This Practice Note closely monitors the progress of the level 2 measures that the European Commission is required to adopt in connection with the Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II) and the Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014) ( Mi FIR) (together, the EU Mi FID II framework), and also tracks amendments to those level 2 measures. Mi FID II and Mi FIR took effect on 3 January 2018, and significantly revised and broadened the regulatory regime first introduced by the original Markets in Financial Instruments Directive (2004/39/ EC) ( Mi FID). For further detail and background on the EU Mi FID II framework, see Practice Notes: EU Mi FID II and Mi FIR—essentials and EU Mi FID II and Mi FIR—one minute guide. ESMA’s...
This document is archived and will no longer be updated. For information on EU EMIR, please see Practice Note: EU Mi FID II and Mi FIR—essentials and the EU Markets in Financial Instruments Directive ( Mi FID II) and Markets in Financial Instruments Regulation ( Mi FIR)—timeline. Introduction to the Mi FIR level 1 roadmap The recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II), together with the Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014) ( Mi FIR), was published in the Official Journal of the European Union on 12 June 2014 and came into force on 2 July 2014. Taken as a package, Mi FID II and Mi FIR substantially revised and enlarged the regulatory framework first created by the Markets in Financial Instruments Directive ( Directive 2004/39/ EC) ( Mi FID I). As amended, the bulk of the new...
This document is archived and will not be updated. For details on Mi FID II, see Practice Note: EU Mi FID II and Mi FIR—essentials and the EU Markets in Financial Instruments Directive ( Mi FID II) and Markets in Financial Instruments Regulation ( Mi FIR)—timeline. Introduction to the Mi FID II level 1 roadmap The recast Markets in Financial Instruments Directive (2014/65/ EU) ( Mi FID II) together with the Markets in Financial Instruments Regulation (600/2014) ( Mi FIR) were published in the Official Journal of the European Union ( EU) on 12 June 2014 and entered into force on 2 July 2014. Collectively, Mi FID II and Mi FIR substantially revised and expanded the regulatory framework first set by the Markets in Financial Instruments Directive (2004/39/ EC) ( Mi FID I). As amended, most provisions of the updated Directive and...
EU MIFID II & MIFIR— Transaction Reporting This Practice Note examines the transaction reporting framework established by the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II) alongside the Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014) ( Mi FIR). The objective of that framework is to enable competent authorities to identify and investigate suspected market abuse, and to supervise the fair and orderly functioning of markets as well as the activities of investment firms. Regulation ( EU) 2024/791 (the Mi FIR Review) was published in the Official Journal of the EU on 8 March 2024 and brings amendments to the transaction reporting framework. The Mi FIR Review entered into force on 28 March 2024 but—as outlined in Date of application of certain provisions of the Mi FIR Review below—specific Mi FIR provisions amended by the Mi FIR...
This Practice Note sets out how firms ought to run their affairs under the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II) and the associated level 2 measures, such as Commission Delegated Regulation ( EU) 2017/565 (the Mi FID II Delegated Regulation) and Commission Delegated Directive 2017/593/ EU (the Mi FID II Delegated Directive). It further outlines amendments to Mi FID II conduct of business and investor protection rules introduced by Directive ( EU) 2024/2811 (the Listing Act). Background to Mi FID II and conduct of business requirements Mi FID II and the Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014) ( Mi FIR) took effect on 2 July 2014, with most provisions across Mi FID II and Mi FIR (collectively, the Mi FID II framework) applying from 3 January 2018. When delivering investment services or, where...
This Practice Note sets out the obligations introduced by the Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II) for investment firms and trading venues in relation to algorithmic and high-frequency trading ( HFT), market making, direct electronic access ( DEA) and tick sizes. It summarises level 1 legislation together with the relevant level 2 provisions and level 3 guidance. It also draws attention to changes made by Directive ( EU) 2024/790 (the Mi FID II Review) and Regulation ( EU) 2024/791 (the Mi FIR Review). Among other measures, Mi FID II requires firms and trading venues to put in place effective systems and risk controls, and to ensure trading systems are resilient and have adequate capacity. Overview of Mi FID II and microstructural issues Mi FID II and the Markets in Financial Instruments Regulation ( Regulation 600/2014) ( Mi FIR) were...
Introduction to MIFID II and Mi FIR Level 1 Glossary Arranged alphabetically, this glossary presents every term defined in the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II) and the Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014) ( Mi FIR), as amended, providing definitions and citing where those terms are set out in Mi FID II and Mi FIR. It also reflects definitions revised by Regulation ( EU) 2024/791 (the Mi FIR Review) or Directive ( EU) 2024/790 (the Mi FID II Review). For further information on Mi FID II, see Practice Notes: EU Mi FID II and Mi FIR—essentials and EU Mi FID II and Mi FIR—one minute guide. Term • Definition • Source reference A Actionable indication of interest – a communication sent by one member or participant to another within a trading system about...
What is the SFTR? The EU Regulation on reporting and transparency for securities financing transactions— Regulation ( EU) 2015/2365 ( SFTR)—aims to boost clarity around SFTs. It places obligations on parties involved in these deals, requires SFTs to be submitted to trade repositories, adds extra reporting duties for investment managers, and brings in a requirement for advance risk disclosures plus written consent before any asset reuse. This Practice Note outlines the principal aspects of the SFTR and serves as a general introduction to its obligations. For background, see Background— Why was the SFTR introduced? below. For details of the UK SFTR framework, see Practice Note: Securities Financing Transactions Regulation ( SFTR)—essentials. Key requirements of the SFTR Counterparties must report SFT particulars to trade repositories UCITS management companies, UCITS investment companies and AIFMs must provide detailed investor reporting on investment fund SFT...
Directive ( EU) 2019/882, also known as the European Accessibility Act (the EAA) Adopted across the EU in April 2019, this is a significant piece of legislation shaped by a marketplace increasingly seeking accessible products and services, and by a rising number of citizens with disabilities—a consequence of longer life spans. The EAA is grounded in the UN Convention on the Rights of Persons with Disabilities ( UNCRPD), the first international, legally binding instrument to set minimum standards for the rights of disabled people. It sits within the Strategy for the Rights of Persons with Disabilities 2021–2030, which seeks to enhance the lives of persons with disabilities in Europe and worldwide, building on the European Disability Strategy 2010–2020. The EAA was initially proposed to complement Directive ( EU) 2016/2102, the EU Web Accessibility (adopted in 2016 to make...
This Practice Note sets out when a prospectus is needed under Regulation ( EU) 2017/1129 (the EU Prospectus Regulation), with a particular emphasis on debt securities. It also provides a Checklist to support advisers on debt offerings in assessing whether a prospectus must be prepared for a transaction under the EU Prospectus Regulation. The EU Prospectus regime: background and legislation package The EU Prospectus Regulation appeared in the Official Journal of the EU on 30 June 2017, with all provisions taking effect from 21 July 2019. While it establishes the core framework, it is complemented by level 2 technical measures ( Commission Delegated Regulations containing detailed disclosure annexes for various categories of issuers and securities) and ESMA level 3 guidelines, technical advice and Q& As. EU Listing Act Regulation ( EU) 2024/2809 (the Amending Regulation), forming part of the EU Listing Act package, was...
Short selling: the two key types Regulation ( EU) 236/2012 (the EU Short Selling Regulation) took effect on 25 March 2012 and has applied since 1 November 2012. Article 2 of the EU Short Selling Regulation provides the definition of short selling. In simple terms, it is a method where a trader arranges to sell a security they do not own. The trader’s goal is to profit by selling short initially and, later, repurchasing the security at a lower price so it can be returned to the original holder. Short selling is present in cash equity markets, and there are derivative approaches that replicate a short position. For example, a trader can take a short view via index futures, options, and spread bets. In summary, there are two forms of short selling: covered short selling – this is where a short seller borrows shares from a...
Adoption of MLD5 The Fifth Money Laundering Directive ( EU) 2018/843 ( MLD5), which updates the Fourth Money Laundering Directive ( EU) 2015/849 ( MLD4), appeared in the Official Journal of the EU on 19 June 2018 and came into force on 9 July 2018. Member States had to transpose MLD5 into domestic law by 10 January 2020. This Practice Note summarises the principal provisions of MLD5. MLD4, as revised by MLD5, has been brought into effect in the UK through the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017, SI 2017/692 (the MLRs); see Practice Note: The Money Laundering Regulations 2017 ( MLRs)—essentials for financial services. The EU and UK anti-money laundering ( AML) and counter-terrorist financing ( CTF) frameworks under MLD4, as amended, have undergone reform. These developments can be followed in AML/ CTF/...
ARCHIVED : This Practice Note has been archived and is no longer maintained. The EU’s Recast Second Wire Transfer Regulation ( EU) 2023/1113 ( Recast WTR2) overhauls and supersedes the EU’s Second Wire Transfer Regulation ( EU) 2015/847 ( EU WTR2). It came into force on 9 June 2023 and will apply from 30 December 2024. For details, see Practice Notes: EU Recast Second Wire Transfer Regulation ( Recast WTR2)—transfers of funds and EU Recast Second Wire Transfer Regulation ( Recast WTR2)—cryptoasset transfers. The EU’s Second Wire Transfer Regulation ( EU) 2015/847 ( EU WTR2), otherwise referred to as the Second Funds Transfer (or Transfer of Funds) Regulation ( EU FTR2), came into force on 26 June 2017, alongside the Fourth Money Laundering Directive ( EU) 2015/849 ( MLD4). Together, MLD4 and EU WTR2 revised and sought to bolster the EU’s anti-money...
What is a credit rating agency methodology? A credit rating agency ( CRA) methodology is the set of practices, procedures and rules a CRA applies when assigning or updating a credit rating. CRAs issue three main types of ratings: ratings of corporates ratings of sovereigns ratings of securities issued in a securitisation or similar transaction (structured securities) where a special purpose vehicle ( SPV) holds a pool of underlying assets, and payments to holders of the structured securities depend on cash flows generated by those assets A corporate or sovereign rating is typically derived from analysis of: the creditworthiness of the entity before any external support any external support that could be available to the entity if it encounters financial difficulties the particular financial instruments being rated A rating of structured securities is usually based on analysis of: the credit...
EU Short Selling Regulation—background and purpose Regulation ( EU) 236/2012 (the EU Short Selling Regulation) took effect on 25 March 2012, with its provisions applying from 1 November 2012. It creates a harmonised regime for requirements and supervisory powers covering short selling and credit default swaps ( CDS), promoting greater alignment across Member States in both the drafting of short selling rules and the circumstances in which emergency action should be triggered. Boost transparency around investors’ short positions in specified EU securities; Equip Member States with explicit powers to act in exceptional circumstances to curb systemic risk and threats to financial stability and market confidence linked to short selling and CDS; Foster coordination between Member States and the European Securities and Markets Authority ( ESMA) in exceptional situations; Limit settlement risk and other dangers associated with uncovered (‘naked’) short...
This Practice Note analyses the disclosure and reporting duties under the Alternative Investment Fund Managers Directive ( Directive 2011/61/ EU) ( AIFMD). It covers continuing investor notifications by alternative investment fund managers ( AIFMs), the drafting of annual reports for alternative investment funds ( AIFs), and supervisory reporting and disclosure to competent authorities. It further considers the added disclosure obligations for AIFMs running leveraged AIFs and those managing private equity funds ( AIFs that obtain control of non-listed companies), together with AIFMD measures aimed at preventing asset stripping... What is the AIFMD? The AIFMD ( Directive 2011/61/ EU) took effect across EU Member States on 22 July 2013 and governs the management, administration and marketing of AIFs throughout the EU. As implemented, it applies to every EU AIFM that manages one or more AIFs, whether those funds are EU AIFs or non- EU AIFs. In EU...
Orphan medicinal products ( OMPs) Orphan medicinal products ( OMPs) are medicines intended to prevent, diagnose or treat rare medical disorders and conditions. Because patient numbers are extremely small, and in the absence of incentives, pharmaceutical firms may doubt whether sales would ever cover the research and development ( R& D) costs of creating medical products to diagnose, prevent and treat such rare diseases. In EU law, ‘rare’ means affecting fewer than five in 10,000 people across the EU. Yet most rare diseases impact fewer than one in 100,000 individuals. Although each rare disease is uncommon, they carry notable public health significance and enduring relevance. It is estimated there are more than 6,000 rare diseases; thus, while each is infrequent, together they account for a substantial patient population, in aggregate roughly one in every 12 people in the EU (all rare diseases...
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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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