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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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As a rule, arrangements whose purpose or consequence is to restrict, distort or impede competition are barred by Article 101(1) TFEU. Agreements with an anti-competitive object are treated as particularly high risk and are presumed to harm markets; owing to their gravity, there is no requirement to demonstrate an actual adverse impact on competition. The concept of an agreement’s object has long been one of the most contested issues in competition law, supported by extensive case law reaching back to 1966. Historically, the test for identifying an anti-competitive object was read broadly, capturing many agreements even where it appeared the parties had no such intention. This expansive approach reflected the pre-2004 regime, under which only the European Commission (the Commission) could apply the exemption in Article 101(3) TFEU. Consequently, Article 101(1) TFEU and the object test existed primarily to indicate when the...
Reasons for reporting greenhouse gas emissions Over the past decade, expectations on businesses and public bodies to disclose greenhouse gas ( GHG) emissions have steadily escalated, creating growing momentum for transparent reporting. Analyses of climate impacts—most notably assessments from the Intergovernmental Panel on Climate Change ( IPCC)—together with tangible extreme weather events across the real world, have sharpened this pressure by underscoring the urgent need to cut emissions. Global accords, including the 2015 Paris Climate Agreement and the UNFCCC Conferences of the Parties ( COP), further amplify the drive on organisations and authorities to curb GHG releases. For further detail on the Paris Agreement and recent COP gatherings, see Practice Note: The Paris Agreement 2015—snapshot. Within the UK, the Climate Change Act 2008 imposes binding obligations on government to cut national carbon emissions, including a statutory requirement for the UK to reach net zero carbon by...
This Practice Note references the Vertical Block Exemption Regulation, Commission Regulation 2022/720 ( VBER 2022), and the Commission’s 2022 Guidelines on Vertical Restraints (2022 Guidelines). What is a vertical agreement? A vertical agreement is a contract concluded by distinct undertakings working at separate stages of the supply chain—eg a producer and its distributors. A supplier may choose a single or multiple resellers for its products or services, across one or more layers of the chain, for instance an EU or country‑specific importer and additional resellers operating at wholesale and retail levels. These arrangements all amount to vertical agreements. Such agreements are typically between non‑competitors, in contrast to horizontal agreements, which are between competitors. Vertical agreements can assume various forms. The principal types include: agency; exclusive distribution; selective distribution; ‘free’ or non‑exclusive...
The pay-outs under long-term or life assurance arrangements can, in some cases, be tied to the worth of particular assets. Those assets are commonly, though not always, investment funds or unit trusts. A policy might be stated to track the value or performance of a set number of units in the relevant fund, or alternatively it might be linked to a share index. Such arrangements are generally called ‘unit‑linked’ or ‘linked long term contracts’ (‘unités de compte’ in French and ‘fondsgebundene’ in German). Strictly, ‘unit‑linked’ sits within the broader category of ‘linked long term’, as a contract can, albeit infrequently, link straight to a non‑unitised asset. They present a range of legal and regulatory questions, succinctly outlined in this Practice Note. EU regulatory status Linked long-term contracts are categorised as Class III under Annex II to Directive 2009/138/ EC (the Solvency II...
The conventions/regulations The insolvency exception appears in a range of conventions/regulations, including: Lugano Convention — the convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, between the European Community and the Republic of Iceland, the Kingdom of Norway, the Swiss Confederation and the Kingdom of Denmark, signed on behalf of the European Community on 30 October 2007 (the Lugano Convention), which governs disputes involving Switzerland, Norway or Iceland. For further information on this convention, see Practice Notes: Tracker— Lugano Convention 2007 [ Archived] and Lugano Convention 2007—general provisions in relation to jurisdiction Hague Convention — the Hague Convention on Choice of Court Agreements (the Hague Convention) (in force from 1 October 2015 onwards) The insolvency exception In cross-border insolvencies, deciding which court has jurisdiction often depends on identifying the governing cross-border convention or regulation and whether the various...
This Practice Note offers an overview of international sanctions regimes. It clarifies what sanctions mean, differentiates between financial sanctions and trade sanctions, and outlines the distinct legal frameworks through which international sanctions are imposed, including UN sanctions, UK domestic sanctions and EU sanctions. It also describes how sanctions are enforced and how, in the UK, penalties for breaching sanctions are applied. What are sanctions? Sanctions are temporary restrictions or bans put in place by governments that govern how their nationals and entities deal with sanctioned states or regimes. They may, for instance, forbid particular categories of goods from being exported to, or imported from, a sanctioned country, or designate individuals, companies or vessels in that jurisdiction with whom business is prohibited. In some situations, specific activities can be authorised under a licence issued by the competent...
UK GDPR This Practice Note outlines the key data protection considerations under the UK General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR), where personal data is exchanged in connection with creating or running a joint venture, or with investing in a private equity fund. It summarises the issues to be considered whenever such sharing occurs around formation, operation and related diligence activities. In the context of a joint venture, personal data can be disclosed between prospective joint venture participants as part of pre-entry due diligence, or between the existing joint venture parties and a party contemplating admission to that joint venture, for diligence purposes and before entering into the arrangement. After establishment, the joint venture parties may go on sharing personal data (with one another and potentially with the joint venture company ( JVC)) on an ongoing basis to...
Key terms Expressions such as ‘responsible/sustainable business’, ‘corporate responsibility’ ( CR), ‘corporate social responsibility’ ( CSR), and ‘environmental, social, governance’ ( ESG) appear widely in multiple settings among companies, advisers and legal practitioners across sectors. Yet, broadly, they all signal an enterprise acting responsibly within its everyday operations, as part of its day-to-day activities. An increasing number of businesses recognise that meeting national, state and local rules alone may no longer adequately shield them from legal, regulatory or reputational exposure, and that missing the escalating expectations in this sphere can carry significant financial consequences. In this note, we adopt ‘sustainable business’ as the overarching label for consistency. For further terminology, see Precedent: Sustainability glossary terms ( The Chancery Lane Project). What is ‘sustainability’? The word ‘sustainability’ often sits alongside phrases such as ‘environmental sustainability’ or green business in common discussion. Although there is no single, settled...
This Practice Note sets out the IP and competition law issues which may arise in connection with character merchandising (ie the practice of licensing the name or likeness of a character for use in the marketing of goods or services, which will usually require the licensing of trade marks and/or copyright) in the EU. It also explores matters that may engage Articles 101 and 102 of the Treaty on the Functioning of the European Union ( TFEU), together with any block or individual exemptions that could be relevant and apply. In principle, tying a product or service to a character can significantly heighten its perceived appeal in the marketplace to consumers. For rights holders, beyond the stream of royalties, exploiting these character assets can be a powerful tool for brand promotion and sponsorship activities and partnerships. For a real-world...
Sustainable development—global context The Brundtland definition The most widely accepted articulation of ‘sustainable development’ emerged in 1987, when the United Nations ( UN) Commission on Environment and Development produced a report entitled Our Common Future, more commonly known as the Brundtland Report. In it, sustainable development is described as the following: development that fulfils the needs of the present without diminishing the ability of future generations to meet their own. It [sustainable development] embraces two central concepts, set out below: the notion of needs, in particular the essential needs of the world’s poor, which should be given overriding priority; and the recognition of limits imposed by the state of technology and social organisation on the environment’s capacity to satisfy present and future needs. The UN General Assembly endorsed the Brundtland formulation in Resolution 42/187. The UN 2005 World Summit Outcome Document...
This Practice Note provides an overview of the requirements and obligations established by Regulation ( EU) 2023/1542 of the European Parliament and of the Council of 12 July 2023 concerning batteries and waste batteries (the Sustainable Batteries Regulation). The Regulation sets out sustainability, safety, labelling and information rules for batteries placed on the market or put into service in the EU. It spans the full life cycle of every battery sold in the Union, whether EU-made or imported, as shown below, and introduces harmonised requirements for manufacture and marketing, marking and information, conformity assessment, supply chain due diligence, and waste management. The Sustainable Batteries Regulation has been in force since 18 February 2024, but obligations are staged by battery type and will affect different economic operators to varying extents. This Practice Note explains which duties correspond to each battery category, which operator they fall on, and the...
On 1 June 2023, the European Commission ( Commission) unveiled its revised Horizontal Guidelines (the Guidelines). As foreshadowed in last year’s consultation draft of the horizontal regime, the Guidelines set out rules that apply to sustainability arrangements concluded between competitors. Although environmental agreements appeared in the 2001 horizontal guidelines, they were taken out of the 2010 edition. Their (re)appearance within the Commission’s antitrust framework therefore marks a significant clarification of the relationship between sustainability and EU competition law. On 10 January 2023, the Commission likewise issued draft guidelines on a novel exclusion removing sustainability agreements in the food and agriculture sphere from the scope of Article 101(1) TFEU. This alignment is consistent with the Commission’s ambitious plan against climate change, packaged within a number of initiatives under the European Green Deal. Rather than mapping out a route for the Commission to back...
This Practice Note This Practice Note describes how sustainability agreements are assessed at present. It first indicates when sustainability initiatives and sustainability standardisation arrangements fall within Article 101 TFEU, as interpreted in the updated Horizontal Guidelines issued. It then recaps what the revised Horizontal Guidelines say about the circumstances and methods for justifying sustainability agreements under Article 101(3) TFEU in practice. Finally, it adds context by outlining recent national developments in this field also. Regulation ( EU) No 1217/2010, the Research and Development Block Exemption Regulation ( R& D BER 2010), and Regulation ( EU) No 1218/2010, the Specialisation Block Exemption Regulation ( SBER 2010)—collectively termed the Horizontal Block Exemption Regulations ( HBERs)—together with the Guidelines on the Applicability of Article 101 TFEU to Horizontal Co-operation Agreements ( Horizontal Guidelines), lapsed on 30 June 2023. As background, on 1 March 2022 the European...
This Practice Note sets out a summary of the Shareholder Rights Directive II ( SRD II) ( Directive ( EU) 2017/828 amending Directive 2007/36/ EC) and its effect in the UK, with a particular emphasis on consequences for asset managers and institutional investors across the market. SRD II seeks to encourage robust stewardship and long-term investment choices, introducing requirements in areas such as transparency of engagement policies and investment approaches across the institutional investment community, and mandating approval and disclosure of related-party transactions. Scope and overview of SRD II The original Shareholder Rights Directive ( SRD I) took effect in 2009 to bolster shareholder rights by setting minimum standards for exercising voting rights attached to shares in EU listed companies. SRD I was extensively revised by SRD II, which applied from 10 June 2019. SRD II places a range of rights and duties on listed...
ARCHIVED: This Practice Note is now archived and is no longer being actively maintained. On 10 May 2022, the Commission introduced a new Vertical Block Exemption Regulation 2022/720 ( VBER 2022). From 1 June 2022, the VBER 2022 superseded the earlier Vertical Restraints Block Regulation 330/2010 ( VBER 2010, also called the VRBE within this Practice Note). This Practice Note was originally prepared for the VBER 2010 specifically. Note—the VBER 2010 expired on 31 May 2022 and, with effect from 1 June 2022, was replaced by the VBER 2022. Under Article 10 VBER 2022, there was a 12 month transition period (ending on 31 May 2023) for pre-existing vertical agreements already in force on 31 May 2022 that satisfied the conditions for exemption under the VBER 2010 on 31 May 2022 but failed to satisfy the conditions for exemption under the VBER 2022....
Sanctions designations are a principal tool through which the UN, the UK and the EU restrict the conduct of individuals and entities linked to threats to international peace, security, or other stated objectives. Once a person is listed, measures—most often asset freezes and curbs on providing funds or economic resources—apply automatically. In the UK, ministers are empowered to create and operate sanctions regimes under the Sanctions and Anti- Money Laundering Act 2018 ( SAMLA 2018). Internationally, the UN Security Council identifies targets via its listing procedures, while the EU adopts both UN-mandated and EU‑autonomous measures using its own legislative processes. This Practice Note outlines how designations work across these systems, the consequences for those subject to restrictions, and the routes available to challenge or seek removal from a list. For information about SAMLA 2018, see Practice Notes:...
This Practice Note assists in identifying the governing law for harmful events occurring on or after 11 January 2009. It reviews Regulation ( EC) 864/2007 concerning the law governing non-contractual obligations, commonly called Rome II. It addresses the default position in Article 4(1), the shared habitual residence carve-out in Article 4(2), and the displacement mechanism in Article 4(3). Within this Practice Note, the regulation is referred to as Rome II. Throughout, Rome II is the shorthand used for the Regulation in this Note. It is intended for use when a court in an EU Member State is applying Rome II to such non-contractual disputes arising from harmful events. It does not examine how UK courts apply the instrument. For guidance on how Rome II is applied by UK courts, see Practice Note: Rome II—the general rule ( UK only). For guidance on: the...
This Practice Note is intended to assist with identifying the governing law for events that result in damage, where those events occurred on or after 11 January 2009. It explains when and why Regulation ( EC) 864/2007 on the law applicable to non-contractual obligations—known as Rome II—was brought in, and outlines the situations in which it applies and those in which it does not. In this Practice Note, the regulation is referred to as Rome II. For guidance on other aspects of Rome II, see the Practice Notes: Rome II—the general rule and its displacement, and Rome II—special rules. When did Rome II come into force? There was some doubt about the date from which Regulation ( EC) 864/2007, Rome II should be applied. Article 31 of Regulation ( EC) 864/2007, Rome II, headed ‘ Application in time’, states that the Regulation applies to events giving rise to...
This Practice Note is for use when determining applicable law where the contract was entered into on or after 17 December 2009. It examines how Regulation ( EC) 593/2008 on the law applicable to contractual obligations— Rome I—operates where the parties have made no choice of governing law. Coverage includes which law governs particular contract types, for example sales of goods, service agreements and distribution arrangements. It also addresses contracts outside those categories, including the operation of the so‑called ‘escape clause’. For these scenarios, the key concepts are ‘characteristic performance’, ‘habitual residence’, and ‘more closely connected’. The Note explores each term and explains how the escape clause contrasts with Rome I’s forerunner, the Rome Convention. Rome I caters for cases where parties select the governing law—see Practice Note: Rome I—applicable law chosen by the parties—as well as where no selection is made. Where no choice...
ARCHIVED: This Practice Note is archived and not maintained The UK is no longer bound by the Rome Convention in international law, following departure from the EU. Nonetheless, the substantive rules still operate in certain cases—namely where a contract was concluded between 1 April 1991 and 16 December 2009 and meets the criteria required by the Act. Accordingly, those provisions have been preserved in the C( AL) A 1990, but they are subject to the amendments made by The Law Applicable to Contractual Obligations and Non– Contractual Obligations ( Amendment etc) ( EU Exit) Regulations 2019, SI 2019/834. For the current position, see Practice Note: Contracts ( Applicable Law) Act 1990—application and interpretation. This Practice Note introduces the Rome ( EC) Convention on the Law Applicable to Contractual Obligations 1980 (the Rome Convention), identifying its signatories, the manner of its UK...
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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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