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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 information EU EIA Directive: Directive 2011/92/ EU of the European Parliament and of the Council of 13 December 2011 on assessing the effects of certain public and private projects on the environment (codification) (the EU EIA Directive) Entry into force: 2 January 2012 Amending documents: Directive 2014/52/ EU of the European Parliament and of the Council of 16 April 2014, which amends Directive 2011/92/ EU on the assessment of the effects of certain public and private projects on the environment. In force: 15 May 2014 Subject: Planning; Environmental impact assessment What is environmental impact assessment? The term ‘environmental impact assessment’ ( EIA) refers to a process that must be undertaken for specified projects before ‘development consent’ is granted. The procedure includes: preparation and submission of an EIA report by the developer. Before the 2014 updates to the EU EIA...
Introduction to REACH ‘ EU REACH’ is the shorthand for Regulation ( EC) 1907/2006 of the European Parliament and of the Council concerning the registration, evaluation, authorisation and restriction of chemicals. Coming into force on 1 June 2007, it replaced a range of EU directives and regulations on chemicals with a single legislative framework, applying directly across all EU Member States. REACH places the responsibility for identifying and controlling the risks of chemicals on the EU market—and their uses—on those manufacturing and/or importing goods that contain them. The key aims of REACH are to: ensure a high level of protection for human health and the environment facilitate the free movement of substances within the EU market strengthen the competitiveness and innovation of the EU chemicals industry, and promote alternative methods for assessing hazardous properties, such as quantitative...
Introduction to EU REACH ‘ EU REACH’ refers to Regulation ( EC) 1907/2006 of the European Parliament and of the Council, which addresses the registration, evaluation, authorisation and restriction of chemicals. It took effect on 1 June 2007, replacing various EU Directives and Regulations with a single legislative framework that applies directly in all EU Member States. EU REACH places the responsibility for understanding and managing the risks of chemicals placed on the EU market—and their uses—on those who manufacture and/or import goods containing such substances. The primary aims of EU REACH are to: secure a high level of protection of human health and the environment enable the free circulation of substances within the EU market boost the competitiveness and innovation of the EU chemicals sector foster approaches other than vivisection and/or animal testing to assess the hazardous properties of...
This Practice Note summarises the European Commission, its structure and competences. As the EU body holding the right of initiative, it alone presents draft legislation and exercises significant executive authority in fields such as competition and external trade. Acting as the Union’s primary executive authority, it administers the EU budget and consists of the College of Commissioners from the Member States. The Commission oversees the application of Union law and adherence to the Treaties by the Member States; it also negotiates international agreements on the EU’s behalf. Legal basis Articles 17 and 18 of the Treaty on European Union ( TEU); Articles 234, 244 to 250, 290 and 291 of the Treaty on the Functioning of the European Union ( TFEU); and the Treaty Establishing a Single Council and a Single Commission of the European Communities (‘ Merger...
ARCHIVED: This Practice Note is archived and is no longer maintained Decision No 2009/406/ EC of the European Parliament and of the Council of 23 April 2009 on the effort of Member States to reduce their greenhouse gas emissions to meet the Community’s greenhouse gas emission reduction commitments up to 2020—latest consolidated version ( July 2013) Entry into force: 25 June 2009 Transposition deadline: n/a Amendments: Annex III ( List referred to in Article 15 of the Act of Accession: adaptations to acts adopted by the institutions—8. ENVIRONMENT) to Croatia’s Act of Accession to the European Union modifies Annex II of the ESD to reflect Croatia’s obligations, namely an 11% commitment Subject: Climate change—climate targets; Sources of environmental law— EU environmental law Purpose and scope of the ESD Under the 2020 EU Climate and Energy Package agreed in 2007, the EU pledged to cut...
EU mandatory corporate sustainability reporting—core legal framework Corporate sustainability—meaning performance against environmental, social and governance ( ESG) benchmarks—has risen sharply up the agenda for investors, customers and employees in recent years. In turn, ESG criteria (also known as ESG metrics or factors) have expanded rapidly, offering standards by which the performance of an entity, most often a company, can be assessed. The central purpose of the EU and global mandatory and voluntary ESG reporting regimes now emerging is to compile quantifiable information that demonstrates whether corporate entities are truly ‘sustainable’ for each ESG metric relevant to their operations, and to make that information as transparent as possible for investors and other stakeholders. Within the EU, the chief legislation mandating sustainability reporting is Directive 2013/34/ EU on annual financial statements, consolidated financial statements and related reports of certain categories of undertakings (the EU...
This Practice Note outlines the Council of the European Union, including its make-up and competences. The Council of the EU—previously called the Council of Ministers—serves as the principal decision-making forum and, alongside the European Parliament, forms the Union’s legislature (it is also referred to simply as the Council). It speaks for the governments of the individual Member States. Legal basis Within the EU’s single institutional framework, the Council wields the competences granted to it by Article 16 of the Treaty on European Union ( TEU) and Articles 237–243 of the Treaty on the Functioning of the European Union ( TFEU). Do not confuse the Council with two similarly named bodies: the European Council, which sets the EU’s strategic direction and priorities. The European Council is not one of the Union’s legislating institutions, so it does not negotiate or adopt EU laws. Rather, it steers the...
This Practice Note This Practice Note examines Regulation ( EU) 655/2014, which establishes the European Account Preservation Order ( EAPO) procedure to streamline cross-border debt recovery in civil and commercial matters. The Regulation introduces a harmonised mechanism for enforcement against debtors, aiming to cut costs and delays in cross-border claims. Under the EAPO Regulation, creditors may obtain account preservation orders on uniform conditions, irrespective of the state in which the competent court sits. The note considers when EAPOs are available, the criteria for issuing an EAPO, and the procedure for applying. As third states and the Regulation’s Member States operate diverse debtor enforcement mechanisms and legal systems for granting such relief, the EAPO Regulation has brought substantial change to this area. An EAPO can only be pursued by creditors domiciled in a Member State and solely for bank accounts held in a Member State....
This Practice Note outlines Council Directive 93/13/ EEC of 5 April 1993, known as the EU Unfair Terms in Consumer Contracts Directive ( EU UTCCD). It summarises the background, scope, enforcement, and the latest developments relating to the EU UTCCD, and flags its context and purpose. It describes the overarching ban on unfair terms, the applicable ‘fairness test’, the grey list of terms identified in the directive, and the consequences where a clause is judged unfair. It also covers the transparency obligations set by the EU UTCCD. The Note highlights key features and effects addressed throughout the directive. For more on other key EU measures protecting EU consumers, see Practice Note: Key EU consumer legislation—summary. For more on EU consumer protection jurisprudence, see Practice Note: EU consumer protection cases...
This Practice Note outlines the threshold values that trigger the applicability of the EU public procurement Directives and the legal sources underpinning them. Relevance and setting of thresholds The EU public procurement Directives apply to contracts where the estimated value does not fall below the relevant threshold stated in each Directive (see Practice Note: The applicability of EU public procurement). These requirements are contained in: Article 4 of Directive 2014/24/ EU, the EU Public Contracts Directive Article 15 of Directive 2014/25/ EU, the EU Utilities Directive Article 95 of the EU Utilities Directive, which also sets a threshold for design contests run as part of a services procurement procedure above the applicable threshold. This threshold is the estimated value of the services contract net of VAT, including any potential prizes and/or payments to participants Article 8 of Directive 2014/23/ EU, the EU...
This Practice Note outlines the entitlements of European Union citizens to enter and reside under EU free movement rules. For these purposes, ‘ EU citizens’ refers to nationals of EU Member States. Nationals of the European Economic Area ( Norway, Iceland and Lichtenstein) likewise benefit from EU free movement law under Directive 2004/38/ EC, the Citizens’ Directive. Accordingly, references in this Practice Note to EU citizens also include EEA nationals. It is important to note that entry and residence on this basis arise as rights (under the Treaty on the Functioning of the European Union ( TFEU)), and EU citizens (and non‑ EU nationals) who fulfil the conditions for an EU right of residence, under secondary legislation, the Citizens’ Directive, are not obliged to secure leave to enter or remain in the host Member State. Rights of entry Under the Citizens’ Directive, EU citizens may enter the host...
Under Directive 2004/38/ EC, the Citizens’ Directive Nationals of the European Economic Area ( EEA)—which includes the EU Member States, Norway, Iceland and Lichtenstein—benefit from EU free movement law. In this Practice Note, references to ‘ EU citizens’, meaning nationals of EU Member States, are understood to include EEA nationals. The Citizens’ Directive identifies two additional categories of relatives of EU nationals who are exercising treaty rights in another Member State, beyond those classed as direct ‘family members’: those in a ‘durable relationship’ with an EU national, which is ‘duly attested’; or ‘other family members’, who: were dependants of the EU national, or members of the EU national’s household, before the EU national came to the host Member State; or have serious health grounds that strictly require their...
Directive 2019/771: EU Sale of Goods Directive ( EU SGD) This Practice Note sets out a high-level summary of Directive 2019/771 ( OJ L 136/28) on specific aspects of contracts for the sale of goods, the EU Sale of Goods Directive ( EU SGD), adopted under the European Commission’s Digital Single Market agenda. The EU SGD confers a range of consumer rights and remedies in business-to-consumer ( B2C) contracts for the supply of goods and is complemented by Directive ( EU) 2019/770 ( OJ L 136/1) on certain matters relating to contracts for digital content and digital services, the EU Digital Content Directive ( EU DCD), introduced in tandem with the EU SGD. For details on the EU DCD, see Practice Note: The EU Digital Content Directive. The EU SGD repealed Directive 1999/44/ EC ( OJ L 171/12) on aspects of the sale of...
This Practice Note gives an overview of the European company, Societas Europaea, or ‘ SE’. It outlines how SEs are set up and run, their head office, share capital and shareholders, arrangements for employee participation, and the mechanism for shifting a head office from one Member State to another. What is a European company? A European company, also called a Societas Europaea ( SE), is a corporate body that can be created within the EU. Once entered on the register in the Member State where its principal office sits, an SE enjoys recognition across Europe and holds its own separate legal personality. What is a head office? ‘ Head office’ is not defined in EU legislation. The meaning of ‘head office’ was examined in the setting of Regulation ( EC) 1346/2000 on insolvency proceedings (now no longer in force) in the Opinion of Advocate General Jacobs...
This Practice Note offers an overview, addressing their formation, corporate status, membership, winding up, and the benefits and drawbacks. What is an EEIG? An EEIG brings together businesses or other bodies from separate Member States that wish to collaborate and carry on activities across borders. Its legal foundation is Council Regulation ( EEC) 2137/85 (the EEIG Regulation). That instrument permits Member States to enact specified domestic provisions concerning EEIGs. Consequently, EU jurisdictions vary in rules on legal capacity, governance and audit requirements for EEIGs. Accordingly, areas such as legal capacity, management arrangements and auditing may not be identical from one jurisdiction to another. Following the UK's withdrawal from the EU, EEIG registration in the UK ceased to be possible. New EEIGs could not be formed on the UK register, and existing groupings depended on the pre‑exit legislative mechanism effectively at that time. Before the transition period ended on 31...
ARCHIVED : This Practice Note has been archived and is not maintained . Context In 2050, with the global population projected to reach nine billion, fierce pressure on oil, gas and other resources is expected to push up the price of fossil fuels unless significant gains in energy efficiency are realised and greater funding is directed towards non-fossil energy. The EU could not remain passive and therefore set out what became the '2050 low-carbon economy roadmap' (the 2050 Roadmap). In 2011, the Commission issued its Communication titled A Roadmap for moving to a competitive low-carbon economy in 2050. The 2050 Roadmap sat alongside the 2020 EU Climate and Energy package for a resource-efficient Europe, defining the core elements to guide the Union's climate efforts so it can evolve into a competitive low-carbon economy by 2050. The strategy rested on the premise that...
This Practice Note outlines the principal changes made to several EU consumer protection laws by Directive ( EU) 2019/2161 ( OJ L 328/7), known as the EU Omnibus Directive. Background In April 2018, the European Commission unveiled the ‘ New Deal for Consumers’ package, aimed at bolstering consumer safeguards and enforcement throughout the EU. The package comprised two draft Directives, each of which has now passed into law: Directive ( EU) 2019/2161 ( OJ L 328/7) on enhanced enforcement and the modernisation of EU consumer protection rules, the EU Omnibus Directive Directive ( EU) 2020/1828 ( OJ L 409/1) on representative actions to safeguard the collective interests of consumers, the EU Representative Actions Directive The EU Representative Actions Directive repeals and replaces Directive 2009/22/ EC (the EU Injunctions Directive), aiming to strengthen mechanisms to halt unlawful practices and to enable redress for...
Context Human activity is increasingly altering the climate and lifting global temperatures by burning fossil fuels, clearing rainforests and rearing livestock. These actions add large amounts of greenhouse gases to those naturally in the air, strengthening the greenhouse effect and causing global warming. Some atmospheric gases behave like a greenhouse’s glass, trapping the sun’s heat and preventing it from escaping into space. Many are natural, yet human actions are raising the concentrations of several, notably: carbon dioxide ( CO2) methane nitrous oxide fluorinated gases CO2 is the greenhouse gas most commonly produced by people and is responsible for most man-made warming. Other greenhouse gases, such as methane and nitrous oxide, are released in smaller quantities, but they trap heat far more effectively than CO2. Rising emissions are driven by: burning fossil fuels (coal, oil and gas), which releases CO2 and nitrous oxide ...
Since 1957, the free movement of persons has been one of four freedoms embedded in the treaty creating the European Economic Community (the Treaty of Rome), and it supports the EU’s single market. The remaining three relate to the free movement of goods, services and capital, and each rests on the rule that nationality must not be a basis for discrimination. Following the Treaty of Rome, and later secondary measures in 1964 and 1968, nationals of Member States and their family members acquired rights to enter and live in other Member States, subject to specified conditions and limits. Those rights and constraints are delineated in the 1957 treaty establishing the European Economic Community (the Treaty of Rome), its successor treaties, and in Directives and Regulations adopted under those treaties. Sources of law The Treaty of Lisbon provides the foundation of current EU law. It took effect on 1...
This Practice Note sets out a summary of the scope and obligations arising under the EU Sustainable Finance Disclosure Regulation ( Regulation ( EU) 2019/2088) together with Commission Delegated Regulation ( EU) 2022/1288. Overview of EU SFDR and related regimes Regulation ( EU) 2019/2088 ( EU SFDR) on sustainability‑related disclosures for the financial services industry creates a disclosure and transparency framework for the EU financial sector as a whole. The EU SFDR sits within a wider EU sustainable finance rulebook of measures, most notably the EU’s Sustainable Finance Action Plan adopted in March 2018 ( Action Plan). For further details on the Action Plan (including a concise overview of the EU legislation that falls within it, such as the EU SFDR, the EU Taxonomy Regulation ( Regulation ( EU) 2020/852 ( EU TR)), and requirements on integrating...
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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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