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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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ARCHIVED: This Practice Note is archived and no longer updated. Since the UK left the EU, the Rome Convention no longer binds the UK under international law. Even so, its substantive provisions may still apply to certain contracts—namely those made between 1 April 1991 and 16 December 2009 that meet the criteria in the act. These rules are preserved in the C( AL) A 1990, but operate with changes introduced by The Law Applicable to Contractual Obligations and Non– Contractual Obligations ( Amendment etc) ( EU Exit) Regulations 2019, SI 2019/834. For current guidance, see Practice Note: Contracts ( Applicable Law) Act 1990—applicable law chosen by the parties. This Practice Note sets out the scope of the applicable/governing law under the Rome Convention, and describes how parties may choose that law, including whether the choice must be in writing, whether it must be the law of a...
This Practice Note This Practice Note outlines the law on defective products under Directive ( EU) 2024/2853 (the Revised EU Product Liability Directive, or Revised EU PLD). It will supersede Council Directive 85/374/ EEC (the EU Product Liability Directive, or EU PLD) for goods or services first placed on the EU market, or put into service, on or after 9 December 2026. Under the Revised EU PLD, manufacturers are strictly liable for defective products. The Note explains what amounts to a defect for these purposes, identifies which actors in the supply chain may incur liability, the extent of that exposure and how contributory negligence may affect claims. It also sets out recoverable heads of loss and the range of defences open to manufacturers. On 18 November 2024, Directive ( EU) 2024/2853 on liability for defective products, repealing Council Directive 85/374/ EEC, was published in the...
Introduction This Practice Note examines, in particular, the requirements for securing retained and derivative rights of residence under relevant EU free movement law in the state of residence (the host Member State). The rules governing retention of a right of residence in the host Member State stem from the rights laid down in Directive 2004/38/ EC (the Citizens’ Directive). The rules for obtaining a derivative right of residence in the host Member State arise from the relevant tests under EU law. When this Practice Note uses the expression ‘ EU nationals’, it means nationals of EU Member States. Individuals from the European Economic Area ( Norway, Iceland and Lichtenstein) likewise benefit from EU free movement law pursuant to the Citizens’ Directive. Accordingly, references to EU nationals within this Practice Note should be understood as also covering EEA nationals. Switzerland is a party to the...
ARCHIVED This Practice Note is archived and is no longer maintained. Regulation ( EU) No 517/2014 of the European Parliament and of the Council of 16 April 2014 on fluorinated greenhouse gases, repealing Regulation ( EC) No 842/2006 Entry into force: 9 June 2014, with application from 1 January 2015 Status: Directly applicable (no transposition deadline) Amendments: See EUR- Lex linked documents Subject: Fluorinated greenhouse gases, air quality EU legislation to control fluorinated greenhouse gases The EU has put in place two legal instruments to curb F‑gas emissions: The Mobile Air- Conditioning Systems ( MAC) Directive 2006/40/ EC, which bans F‑gases with a global warming potential exceeding 150 times that of carbon dioxide in new types of passenger cars and light vans from 2011, and in all newly produced cars and vans from 2017 Regulation ( EU) No 517/2014 on...
This Practice Note This Practice Note examines how evidence is obtained in the courts of an EU Member State in civil or commercial disputes under Regulation ( EU) 2020/1783 on co-operation between the courts of the Member States in the taking of evidence in civil or commercial matters, which, from 1 July 2022, repealed and replaced Regulation ( EC) 1206/2001 (the Taking of Evidence Regulation). Its purpose is to enhance and speed up judicial co-operation by ensuring that the sending and execution of requests are managed by the most efficient means between the courts of EU Member States. The regulation overrides any taking of evidence provisions found in bilateral or multilateral treaties or arrangements made by EU Member States and, as set out in Article 29(1) of Regulation ( EU) 2020/1783, this applies in particular to: the Hague Convention of 1 March 1954 on Civil...
Background and key objectives Directive ( EU) 2023/1791 of the European Parliament and of the Council of 13 September 2023 on energy efficiency (the recast EED) was published in the Official Journal on 20 September 2023. Member States must transpose most provisions of the recast EED into national legislation by 11 October 2025, enabling the revisions to take effect from 12 October 2025, with certain article‑specific exceptions as set out in Article 37. The existing Energy Efficiency Directive ( Directive 2012/27/ EU) is repealed from 12 October 2025. For details of the position under the original EED, see Practice Note: Energy Efficiency Directive 2012/27/ EU—snapshot [ Archived]. The recast EED refines the EU’s energy efficiency framework to align with the ambition of reaching net zero by 2050. It raises the EU’s overall 2030 energy efficiency target, with objectives to limit the need for new power...
ARCHIVED: This Practice Note has been archived; it is no longer maintained and is supplied for background reference only. For further information concerning the Prospectus Regulation, please see the Practice Note titled The UK Prospectus Regulation—essentials [ Archived]. Introduction to the Prospectus Regulation and Prospectus Directive comparison and analysis The Prospectus Regulation ( EU) 2017/1129 ( PR) was released in the Official Journal ( OJ) of the European Union ( EU) on 30 June 2017, with certain elements coming into legal effect on 20 July......
BREXIT: From 31 January 2020, the UK ceased to be an EU Member State, yet entered an implementation period in which, for many purposes, the EU continues to treat it as a Member State. As a third country, the UK no longer takes part in the EU’s political institutions, agencies, offices, bodies or governance structures (save to the limited extent agreed); however, it must still observe its obligations under EU law (covering EU treaties, legislation, principles and international agreements) and accept the continuing jurisdiction of the Court of Justice of the European Union in line with the transitional arrangements in Part 4 of the Withdrawal Agreement. This affects this Practice Note. Further reading: Brexit—introduction to the Withdrawal Agreement. Guidance: Practice Note: Brexit—impact on finance transactions [ Archived]— Brexit planning and impact—key issues for debt capital markets...
This Practice Note assists with identifying which EU Member State’s courts have jurisdiction to hear an insurance dispute. It focuses on the changes introduced by Regulation ( EU) 1215/2012, Brussels I (recast), as they apply to insurance, contained in Chapter II, Section 3, Articles 10–15. It reviews the default principle that proceedings should be brought in the defendant’s place of domicile, and the departures from that approach where the policyholder, treated as the weaker party, is involved. It also analyses the position where the parties contract on an equal footing. The Note further considers safeguards against unintended, tacit prorogation of jurisdiction, and evaluates how an agreed jurisdiction clause operates in the insurance context. Special regime for insurance matters The dedicated insurance rules in Brussels I (recast) are, for the most part, aligned with those previously found in Regulation ( EC) 44/2001, Brussels I....
This Practice Note sets out the requirements for approving and publishing prospectuses under the EU Prospectus Regulation. It covers: the Home Member State concept and approval of prospectuses prepared under third country laws publication of prospectuses supplements and advertisements language requirements the single passport concept Where relevant, it also reflects changes introduced by the EU Listing Act that are currently in force. This Practice Note complements other practical guidance on the EU Prospectus Regulation. For overviews of the regime, see Practice Notes: The EU Prospectus Regulation—essentials and The EU Prospectus Regulation—level 2 and level 3 measures. This Practice Note has a debt securities focus. Approval and publication of prospectuses Why does a prospectus need to be approved and who approves it? A prospectus compliant with the EU Prospectus Regulation must be prepared and made public before an offer of securities is made to the public, or securities are admitted to trading on a...
The 'essential facilities' doctrine holds that when a dominant undertaking withholds access to an essential facility it controls, this can amount to an abuse of dominance where that denial materially restricts competition. Historically, essential facilities cover infrastructure, for example an airport or an energy transmission pipeline, regarded as indispensable for a particular rival to compete effectively in a downstream, closely related, or neighbouring market. Recent jurisprudence has extended the doctrine within the sphere of digital platforms, acknowledging that curbs on entry to certain platform ecosystems may, in appropriate circumstances, prompt concerns under Article 102 TFEU even if the facility does not mirror traditional physical infrastructure. Distinct issues also arise where licensing or access to intellectual property rights ( IPRs) or propriety information is refused, which this Practice Note does not address. Essential facilities doctrine in a policy...
This Practice Note examines the marketing, passporting and third-country regimes within the Alternative Investment Fund Managers Directive ( Directive 2011/61/ EU) ( AIFMD). What is the AIFMD? The AIFMD ( Directive 2011/61/ EU) took effect in EU Member States on 22 July 2013 and addresses the management, administration and marketing of AIFs across the EU. As implemented, it applies to all EU AIFMs that manage one or more AIFs, whether those AIFs are EU AIFs or non- EU AIFs. The AIFMD, as implemented in EU Member States, also applies to: non- EU AIFMs who manage EU AIFs, and (in part) non- EU AIFMs who actively market AIFs in the EU For general information on the application of AIFMD, see Investment funds, asset management, and benchmarks ( EU Law)—overview and Practice Note: EU AIFMD—essentials. For the latest developments in relation to the AIFMD, see: EU AIFMD and...
This Practice Note introduces supplementary protection certificates ( SPCs) and paediatric extensions ( PEs) in the EU. It sets out why they were created, when and how to seek them, and their duration. It also reviews leading Court of Justice rulings interpreting Regulation ( EC) 469/2009 and Regulation ( EC) 1610/96, the regimes governing SPCs for medicinal products and plant protection products ( PPPs) in the EU... Supplementary protection certificates ( SPCs) What is an SPC? An SPC continues the protection afforded by a patent for a specific medicinal or plant protection product for up to five years, subject to meeting defined criteria (see: Conditions for obtaining an SPC in an EU Member State below). It does not prolong the patent term for subject-matter beyond the SPC’s scope and is therefore not a ‘patent term extension’ in itself. The rights conferred by an SPC in...
UK status From 31 January 2020 (exit day) the UK ceased to be an EU Member State. Under the Withdrawal Agreement there was an implementation period during which EU law continued to apply to the UK. With effect from 1 January 2021, the principal operative elements of Regulation ( EU) 2015/848 ( OJ L141/19), the Recast Regulation on Insolvency, concerning automatic recognition, no longer extend to the UK (see Practice Note: Brexit—impact on Recast Regulation on Insolvency). Nevertheless, where its conditions are fulfilled, other Member States still apply the EU Recast Regulation on Insolvency, and this note considers its operation as between Member States... EU Recast Regulation on Insolvency The EU Recast Regulation on Insolvency, applicable inter se between Member States, provides for the opening of main, secondary or territorial insolvency proceedings (see Practice Note: Recast Regulation on Insolvency as between Member...
This Practice Note summarises the Court of Justice of the European Union, its structure and powers. Judicial bodies of the Court of Justice of the EU The Court of Justice of the EU (often called the CJEU) comprises the Court of Justice and the General Court; it also included the Civil Service Tribunal until its closure in September 2016. These courts possess distinct jurisdictions and operate under slightly different procedures, as outlined below. The Court of Justice Jurisdiction The Court of Justice has competence to decide on: references for preliminary rulings under Article 267 TFEU. Regulation 2024/2019, amending Protocol No 3 to the Statute of the Court of Justice of the EU and applicable from 1 October 2024, introduced provisions transferring part of the preliminary ruling jurisdiction from the Court of Justice to the General Court (see The General Court below). All requests for...
In the context of arbitration proceedings, this Practice Note introduces: the General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR), which applies within the EEA and previously in force under UK law up to the close of the Brexit implementation period (11 pm UK time on 31 December 2020), and the United Kingdom General Data Protection Regulation, Retained Regulation ( EU) 2016/679 (the UK GDPR) regime, which applies under UK law from the very end of that implementation period Where a distinction between the two frameworks is unnecessary, this Practice Note uses ‘ GDPR’ as a convenient collective term. For routine processing of personal data, the UK GDPR and the Data Protection Act 2018 ( DPA 2018) should be read closely in tandem, as both sets of provisions apply directly. Practitioners are likely to find it most...
EU dimension The opening task in any EU merger control review is to determine if the deal falls under the scope of the EU Merger Regulation ( EUMR). The EUMR bites only on concentrations that possess an ‘ EU dimension’. A concentration encompasses most arrangements that involve the acquisition of control, and its reach is broader than traditional merger scenarios, notably taking in many, and often intricate, joint ventures, as well as other structures where control is obtained (see A ‘concentration’ with an EU dimension). Whether a deal has an ‘ EU dimension’ turns solely on meeting specified turnover thresholds. These thresholds are purely jurisdictional and applied without regard to: substantive competition concerns the parties’ nationality the country in which the deal occurs the law governing the transaction Accordingly, the EUMR may capture transactions with minimal, or even no, EU connection in practice. The transaction must exhibit an EU...
Scope of supremacy As first composed, the EU Treaties lacked any clause expressly assuring the supremacy, otherwise termed the primacy, of EU law. In practice, the Court of Justice’s deployment of the supremacy principle has largely secured the uniform application of EU law throughout the Member States; absent this doctrine, EU law would lose its integrative force. Supremacy is therefore a judicial creation, and the Court of Justice’s steadfast adherence to it is the clearest explanation for the sophisticated and profound integration achieved between the Member States. Through a succession of seminal rulings, the Court of Justice, alongside national courts, has shaped and entrenched the doctrine, seeking to delineate how European law relates to national law, including national constitutional law. Equally, one must recognise the substantive role of national courts in sustaining supremacy by making EU Treaty rights effective for citizens within the...
The Alternative Investment Fund Managers Directive ( Directive 2011/61/ EU) ( AIFMD), once transposed across EU Member States, set out rules on transparency and the pre-contract information that prospective investors must receive prior to making an investment decision. The primary document for any investor and an alternative investment fund manager ( AIFM) is the investment prospectus, also referred to as an information memorandum, which must be prepared to include all pertinent details about the opportunity so an investor can make an informed choice. This Practice Note outlines the prospectus transparency obligations required by Article 23 of the AIFMD and examines these themes when preparing an investment memorandum that is fit for purpose. For broader guidance on disclosure, including periodic communications to investors, regulatory reporting, private equity disclosures and anti-asset stripping provisions, see Practice Note: EU AIFMD disclosure, reporting and anti-asset stripping...
This Practice Note summarises the principal requirements of Regulation ( EU) 2022/2554 (the Digital Operational Resilience Act, DORA) and Directive ( EU) 2022/2556, which amends certain Directives regarding digital operational resilience for the financial sector (the Amending Directive). What is DORA? On 24 September 2020, the European Commission released proposals for a Regulation on digital operational resilience for the financial sector (the Digital Operational Resilience Act, DORA) and a Directive updating digital operational resilience obligations in Directives 2006/43/ EC, 2009/65/ EC, 2009/138/ EU, 2011/61/ EU, EU/2013/36, 2014/65/ EU, ( EU) 2015/2366 and EU/2016/2341 (the Amending Directive). These proposals formed part of the Commission’s Digital Finance Package. DORA is intended to consolidate and elevate information and communication technologies ( ICT) risk requirements across the EU financial sector so that a very broad range of financial system participants are bound by a common suite of...
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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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