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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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Key dates On 6 June 2019, the European Council approved Directive ( EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019, known as the Restructuring and Second Chance Directive. It covers preventive restructuring frameworks, discharge of debt and disqualifications, and seeks to improve the efficiency of procedures on restructuring, insolvency and debt discharge, amending Directive ( EU) 2017/1132. The Directive became effective on 17 July 2019 (20 days after its publication in the Official Journal on 26 June 2019) and Member States had to implement it by 17 July 2021 (within two years of commencement; see: LNB News 26/06/2019 67 and LNB News 06/06/2019 70). Obligations to use electronic communications (see Articles 28 and 34.1) apply as follows: Filing of claims — compliance required by 17 July 2024 Submission of restructuring or repayment plans — compliance required by 17 July 2024 ...
UK status From 31 January 2020 (exit day), the UK is no longer an EU Member State. Under the Withdrawal Agreement there was an implementation period during which EU law continued to apply. From 1 January 2021, however, the key operative aspects of Regulation ( EU) 2015/848 ( OJ L141 5.6.2015 p 19)—the Recast Regulation on Insolvency—on automatic recognition no longer apply to the UK (see Practice Note: Brexit—impact on Recast Regulation on Insolvency). Other Member States still give effect to the EU Recast Regulation on Insolvency where its conditions are met, and this note examines how it functions between those Member States. EU Recast Regulation on Insolvency The EU Recast Regulation on Insolvency brought substantial reforms to the EC Regulation on Insolvency, Regulation ( EC) 1346/2000. For the complete text of the EU Recast Regulation on Insolvency, click here. Although the EU Recast...
UK status From exit day, 31 January 2020, the UK ceased to be an EU Member State. Under the Withdrawal Agreement there followed an implementation period, during which EU law continued to apply to the UK. From 1 January 2021, however, the core provisions on automatic recognition in Regulation ( EU) 2015/848 ( OJ L 141, 5.6.2015, p. 19), the Recast Regulation on Insolvency ( EU Recast Regulation on Insolvency), no longer apply in the UK (see Practice Note: Brexit—impact on Recast Regulation on Insolvency). Other Member States nonetheless still apply the EU Recast Regulation on Insolvency where its conditions are met, and this Practice Note considers how it operates between those Member States... EU Recast Regulation on Insolvency The EU Recast Regulation on Insolvency introduced significant reforms to the EC Regulation on Insolvency, Regulation ( EC) 1346/2000 ( EC Regulation on...
What are insurance-linked securities? Insurance-linked securities ( ILS) serve as a risk management tool for insurers and reinsurers. Insurers typically handle their risk exposure by arranging structures whereby: the insurer keeps its primary obligation to its policy holders, while another entity receives sums reflecting a portion of the premia paid by policy holders to the insurer, and must pay the insurer amounts mirroring an agreed share of the losses the insurer suffers Under this structure, amounts linked to premia and to covered losses are apportioned to an agreed ratio, while the insurer’s duties to policy holders remain unaffected. This practice is also known as risk mitigation or risk transfer. The predominant method of insurance risk management is reinsurance, in which the insurer...
EU EMIR REFIT Regulation ( EU) 2019/834 ( EU EMIR REFIT) was published in the Official Journal of the EU on 28 May 2019 and takes effect from dates starting 17 June 2019. Regulation ( EU) 2019/2099 ( EU EMIR 2.2) appeared in the Official Journal on 12 December 2019 and applies from 1 January 2020. This Practice Note outlines the amendments to Regulation ( EU) 648/2012 ( EU EMIR) made by EU EMIR REFIT and EU EMIR 2.2. For current EU EMIR materials, see: EU EMIR—essentials, EU EMIR—one minute guide, EU EMIR—level 2 and level 3 measures, and the EU EMIR—timeline. EU EMIR REFIT The following summarises the principal changes under EU EMIR REFIT, effective from 17 June 2019 unless noted otherwise: Categorisation of counterparties ( Article 2(8) of Regulation ( EU) 648/2012): the definition of a financial counterparty ( FC) is revised to: ...
What is a credit default swap? A credit default swap ( CDS) is a two-party contract that takes its value from the credit risk of a third party, called the reference entity, and from specified or general obligations of that entity, known as reference obligations. The reference entity might be a corporate, a sovereign, a municipality or a comparable organisation, and it is not a party to the CDS. The main objective of a CDS is to separate the reference entity’s credit risk from its other risks and from owning the reference entity’s obligations, including any reference obligation. Under the CDS, the protection seller accepts the reference entity’s credit risk, while the protection buyer makes regular payments to the seller. If a credit event occurs—such as default, bankruptcy, or another situation recognised as affecting the reference entity’s...
The table below monitors and summarises every appeal presently before the General Court concerning the EU’s Digital Markets Act ( DMA) (ie actions seeking annulment of Commission decisions). For information on the DMA’s passage through the ordinary legislative procedure, see the EU Digital Markets Act—progress tracker. Ongoing cases Case T-357/24 Opera Norway v Commission — Challenge to the Commission decision in Case DMA.100028 for not designating Microsoft as a gatekeeper under Article 2 of the DMA in relation to its web browser platform service, Edge Hearing held—22/10/2025 Lodged—11/07/2024 Case T-214/24 Apple and Apple Distribution International v Commission — Appeal against the Commission decision in Case DMA.10022 determining that i Messge is a...
This Practice Note reviews the court’s jurisdiction when dealing with consumer contracts, as prescribed in Articles 17–19 of Regulation ( EU) 1215/2012, Brussels I (recast), which forms part of section 4 of the regulation. That section affords additional safeguards to consumers, recognising that they are viewed as the weaker party in a dispute. As a default, a consumer may bring proceedings as claimant in the EU Member State in which they are domiciled, even if the defendant is domiciled elsewhere. Care is required regarding the definition of ‘consumer’ and the potential difficulties that can emerge when deciding how the provisions should be applied in practice. Overview of the consumer provisions This Practice Note sets out the relevant issues when considering jurisdiction in relation to consumer contracts under Brussels I (recast)......
What is clearing of derivatives? Clearing is the mechanism that removes the usual danger that one side of a derivatives deal fails to perform (counterparty risk). The key participants in the clearing process are: a specialist financial institution called a clearing house; and other financial institutions—typically banks or brokers—that sign a clearing agreement with the clearing house; these are its clearing members, also referred to as clearing firms In cleared transactions: every trade is executed by clearing members, either for their proprietary books or on behalf of clients; and the clearing house inserts itself between the clearing members to each deal, becoming counterparty to both sides—so each participant bears the clearing house’s credit risk, not that of the opposite side Clearing members therefore need not concern themselves with who their clearing member opposite numbers are, or their credit quality, but only with the...
Nuclear energy in the EU As at September 2023, 12 of the 27 EU Member States ( Belgium, Bulgaria, Czechia, Finland, France, Hungary, Netherlands, Romania, Slovakia, Slovenia, Spain and Sweden) operate nuclear power stations on their soil, while Germany shut its last reactors in April 2023. Nuclear power usage fell by 16.7% between 2021 and 2022, yet it still supplied over a fifth (21.8%) of the EU’s total electricity generation in 2022. Nuclear safety is treated as a priority at EU level, due to the potential for cross-border consequences should a nuclear accident occur. This Practice Note introduces the Treaty establishing the European Atomic Energy Community (the Euratom Treaty), which provides the foundation for EU-wide nuclear rules and standards, and sets out principal EU legislation pertinent to the nuclear industry. It addresses rules on nuclear safeguards, installation safety and licensing, protection of human health and the...
This Practice Note outlines the requirements and procedural steps for European patent applications at the European Patent Office ( EPO), covering EPO post‑grant opposition and limitation procedures. It further explains that, once a European patent is granted, the proprietor may lodge a ‘request for unitary effect’ with the EPO to obtain a unitary patent. European patents There are two types of European patents: European bundle patents—often called ‘classic’ or ‘traditional’ European patents, or simply European patents or EPs for short, and European patents with unitary effect—commonly known as unitary patents European bundle patents The European Patent Convention ( EPC) created a single route for securing patents in multiple countries from one patent application. The EPC is applied by the EPO, which serves as the executive arm of the European Patent Organisation, an international organisation with 39 member states, including all 27 EU Member States plus certain non‑ EU members such as the UK,...
This Practice Note examines the background and real-world effects of the duties to evaluate the level of protection afforded to data subjects and to apply suitable supplementary measures, when carrying out a restricted cross-border transfer of personal data under Article 46 of Regulation ( EU) 2016/679, the EU’s General Data Protection Regulation ( EU GDPR). It proceeds on the basis that readers are already conversant with central data protection notions and terminology, including ‘processing’, ‘personal data’, ‘controller’/‘processor’ and ‘data subject’, together with the functions of key supervisory organisations and the EU GDPR’s international transfer framework. For an overview of EU data protection law and core terminology, see these Practice Notes: Key definitions under EU data protection law The EU’s General Data Protection Regulation ( EU GDPR) EU GDPR—transfers of personal data internationally and to international...
Article 17(1) TEU entrusts the European Commission with overseeing Member States’ adherence to EU law. The Commission’s chief enforcement mechanism is the general EU infringement procedure, comprising two distinct routes laid down in Articles 258 and 260 TFEU, each with its own subject matter. Article 258 TFEU seeks a declaration that a Member State’s conduct breaches EU law and that such conduct will cease. Article 260 TFEU seeks to spur a defaulting Member State to comply with a judgment confirming a failure to fulfil obligations—i.e. recurrent infringements—and has a much narrower scope than Article 258 TFEU (see P Sweden v API and Commission). This framework therefore distinguishes between ‘first order compliance’ with Treaty obligations and ‘second order compliance’ with judgments of the Treaty regime’s dispute settlement body. The complaint to the European...
This Practice Note sets out the obligations under Regulation ( EU) 2023/956 of 10 May 2023, which creates the EU’s carbon border adjustment mechanism (the EU CBAM Regulation), as they will apply during the definitive CBAM phase from 1 January 2026 onwards. For further information on the EU CBAM’s transitional phase (which ran from 1 October 2023 to 31 December 2025), please refer to the Practice Note: EU carbon border adjustment mechanism ( EU CBAM)—transitional period (2023 to 2025) for more detail. Objectives of the EU CBAM Regulation ( EU) 2023/956, establishing a carbon border adjustment mechanism (the EU CBAM Regulation), was published in the Official Journal of the EU on 16 May 2023. Under Article 1, its overarching purpose is to address greenhouse gas emissions embedded in in-scope products upon their import into the EU. It does this by levying an...
The EU’s external responsibilities are determined according to whether authority is granted to the EU or to the Member States. These responsibilities fall into two categories: exclusive — exercised solely by the Union (for instance, the common agricultural policy); or shared — exercisable either by the Union or by Member States, for example in relation to transport policy. The boundary has been defined by the case law of the Court of Justice of the European Union and is founded on the doctrine of implied powers, under which external competence flows from the presence of explicit internal competence held within the Treaties. This case law is reflected in Article 216 TFEU, which provides that the Union is competent to conclude an agreement where: the EU Treaties contain such a provision; concluding an agreement is necessary to attain one of the aims set out in the...
This Practice Note examines data, privacy and cybersecurity matters linked to the deployment of autonomous and connected vehicle technology, including: The technology Declaration of Amsterdam Cooperative Intelligent Transport Systems ( C- ITS) EU General Data Protection Regulation e Privacy Directive Cybersecurity Data accessibility Liability EU AI Act e Call Data preservation and data production in the context of criminal proceedings International Practical issues For further coverage of other principal legal questions related to this technology, see Practice Note: Automated vehicles—key legal issues in the EU, and for a timeline and headline information, see Practice Note: EU automated vehicles—tracker. To monitor UK developments, see Practice Notes: Autonomous vehicles—key legal issues, Autonomous and connected vehicles—data protection and privacy issues, and UK automated...
The EU’s General Data Protection Regulation ( Regulation ( EU) 2016/679) took direct effect and became fully enforceable across EU Member States on 25 May 2018. As the EU GDPR has been incorporated into the EEA Agreement and applies in every EEA country, references within it to EU Member States can generally be read as also covering EEA members. Enforcement under the EU GDPR has largely centred on elevating sanctions for breaches, with the expectation that tougher penalty provisions—particularly the higher administrative fines of up to the greater of 4% of worldwide annual turnover or €20m—will encourage stronger compliance. The Regulation also established the European Data Protection Board ( EDPB) to promote a more uniform interpretation of the EU GDPR and the penalties issued under it. This Practice Note examines: the approach to sanctions and enforcement under the EU GDPR, including the role of the lead...
One of the principal aims of the EU’s General Data Protection Regulation, Regulation ( EU) 2016/679 (the EU GDPR), is to bring about consistent implementation and enforcement of data protection across the EU and EEA in practice. Under the EU GDPR, every Member State may designate one or more independent public bodies to oversee application of the EU GDPR, ie a ‘supervisory authority’, as appropriate. This Practice Note: sets out the European Data Protection Board ( EDPB) outlines the European Data Protection Supervisor ( EDPS) compiles a consolidated list of supervisory authorities in the EU and EEA For guidance on sanctions and enforcement under the EU GDPR, see Practice Note: EU GDPR—sanctions and enforcement. The EDPB The EDPB sits at the heart of the EU GDPR framework and its guidance and opinions carry considerable weight. It is made up of the head of each EU national...
STOP PRESS On 17 June 2025, the European Commission released its long‑awaited review of the EU Securitisation Framework, together with a comprehensive legislative proposal to revise the following: EU Securitisation Regulation ( Regulation ( EU) 2017/2402) EU Capital Requirements Regulation ( Regulation ( EU) No 575/2013) EU Solvency II Delegated Regulation ( Commission Delegated Regulation ( EU) 2015/35) EU Liquidity Coverage Requirement Delegated Regulation ( Commission Delegated Regulation ( EU) 2015/61) Changes to the EU Securitisation Regulation span risk retention, investor due diligence, transparency, STS on‑balance sheet securitisations, and the definitions of public and private securitisation. Amendments to the Capital Requirements Regulation cover, among other matters, more risk‑sensitive capital requirements, resilient securitisation positions, and significant risk transfer tests. Additional consultation and further amendments are expected as the EU legislative process progresses. EU securitisation...
This tracker covers the development of the EU- US Data Privacy Framework ( DPF) following the invalidation of the Safe Harbour and Privacy Shield frameworks The DPF enables cross-border movements of personal information to the United States on the basis of an adequacy finding set out in Commission Implementing Decision ( EU) 2023/1795 of 10 July 2023, adopted pursuant to Regulation ( EU) 2016/679 of the European Parliament and of the Council concerning the adequate level of protection of personal data under the EU- US Data Privacy Framework, in situations where such flows would otherwise be barred by the EU General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR). A short explanation of adequacy appears below; nevertheless, this tracker should be considered alongside Practice Note: EU GDPR—transfers of personal data internationally and to international organisations for added detail. In summary, Article 44 EU GDPR...
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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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