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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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This Practice Note reviews Regulation ( EC) 861/2007 creating the European Small Claims Procedure (the ESCP Regulation), as amended by Regulation ( EU) 2015/2421, which applies to cross border claims below €5000. It explains the procedure under the Regulation, from initiating the claim right through to enforcement and related matters, in the usual manner, as appropriate. What is the small claims procedure? The small claims procedure was brought in to make small disputes simpler, quicker and less expensive to handle. It is offered to parties as an alternative to the small claims mechanisms operating in Member States. Its advantage is that it removes the need for extra proceedings to recognise and enforce foreign judgments given under an EU Member State’s own small claims procedure. The procedure is determined by the relevant procedural law of the Member State where it is conducted, applying that forum’s...
ARCHIVED: This Practice Note has been archived and is not maintained On 10 May 2022, the Commission adopted the new Vertical Block Exemption Regulation 2022/720 ( VBER 2022). VBER 2022 superseded the earlier Vertical Restraints Block Regulation 330/2010 ( VBER 2010, which this Practice Note also refers to as the VRBE) with effect from 1 June 2022. This Practice Note was prepared for the VBER 2010. NOTE— The VBER 2010 expired on 31 May 2022 and was replaced by the VBER 2022 from 1 June 2022. Under Article 10 of VBER 2022, a 12-month transition period ran until 31 May 2023 for pre-existing vertical agreements in force on 31 May 2022 that fulfilled the conditions for exemption under VBER 2010 on that date but did not meet the exemption conditions in VBER 2022. Accordingly, this Practice Note is provided for background...
The EU’s unique institutional framework As a supranational polity, the EU is neither a country nor a federation like the United States, nor an organisation for co-operation between governments such as the United Nations. It is, in truth, one of a kind. Its arrangement fits no standard legal classification and its achievements stem from the distinctive way it operates. The EU’s Member States remain sovereign and independent, yet they pool elements of their sovereignty to secure strength and global influence they could not attain individually. For details, see Practice Note: List of EU Member States and official languages. The EU’s institutional system is designed to uphold its values, objectives and interests, along with those of its citizens and its Member States. It also promotes the coherence, effectiveness and continuity of EU policies and actions. The core framework comprises seven institutions...
This Practice Note reviews Regulation ( EC) 1896/2006—the European Order for Payment Regulation ( EOP Regulation)—as updated by Regulation ( EU) 2015/2421. It outlines European Orders for Payment ( EOPs), also known as European Payment Orders ( EPOs). These serve cross-border matters to secure payment of a defined, uncontested monetary claim without issuing court proceedings. Article 2 of the EOP Regulation lists claims that are excluded. A defendant may file a ‘statement in opposition’, request a review of the order in exceptional cases when out of time to do so, or ask the enforcing court to decline enforcement. This Practice Note also refers to the Report of 17 October 2016 reviewing the Regulation. Relevant regulations and report Regulation ( EC) 1896/2006 creating a ( EOP Regulation) Commission Regulation ( EU) 936/2012 amending the Annexes to the EOP...
BREXIT: From 31 January 2020, the UK ceased to be an EU Member State and moved into an implementation phase, during which, for many matters, the EU continues to treat it as if it were a Member State across a range of areas. In its capacity as a third country, the UK is excluded from the EU’s political institutions, agencies, offices, bodies and governance frameworks (save to the limited extent agreed), yet it must keep to its obligations under EU law (covering EU treaties, legislation, principles and international agreements) and remain subject to the ongoing jurisdiction of the Court of Justice of the European Union in line with the transitional regime in Part 4 of the Withdrawal Agreement. For further reading, see: Brexit—introduction to the Withdrawal Agreement. This affects this Practice Note. For guidance, see Practice Note: Brexit—impact on finance transactions [ Archived]— Brexit planning and...
BREXIT: From 31 January 2020, the UK ceased to be a Member State of the EU, yet moved into an implementation phase in which, for numerous purposes, the EU continues to regard it as a Member State. As a third country, the UK is excluded from participation in the EU’s political institutions, agencies, offices, bodies and governance frameworks (save to the limited extent agreed), yet it must still comply with obligations under EU law (covering EU treaties, legislation, principles and international agreements) and accept the ongoing jurisdiction of the Court of Justice of the European Union, in accordance with the transitional provisions in Part 4 of the Withdrawal Agreement. For further reading and context, see: Brexit—introduction to the Withdrawal Agreement. This development affects this Practice Note. For related guidance, see Practice Note: Brexit—impact on finance transactions [ Archived]— Brexit planning and...
Structure of the EU electricity system The rules that govern the EU electricity system extend to two areas: the physical infrastructure for electricity generation, transmission and consumption (often called the electricity network or grid), and electricity markets (ie the movement of money) Under the Electricity Directive ( Directive ( EU) 2019/944), “electricity markets” means markets for electricity, embracing over-the-counter trading and organised exchanges, and markets for energy, capacity, balancing and ancillary services across all time horizons, notably forward, day-ahead and intraday markets. The EU electricity market is split into: wholesale or production markets, covering power flows and the associated transactions between generators and retailers, and retail markets, which provide electricity to final consumers Power produced at a power station is commonly bought and resold multiple times within the wholesale space—often via a power or energy...
This Practice Note This Practice Note reviews the investor disclosures required for UCITS funds (that is, open-ended collective investment schemes constituting undertakings for collective investment in transferable securities). It also examines key provisions of the UCITS Directive 2009/65/ EC. Coverage includes obligations concerning the prospectus, periodic reports, pricing details and the key investor information. For more information on the UCITS regime, see Practice Note: Undertakings for Collective Investment in Transferable Securities ( UCITS)—essentials. For details on non‑ UCITS funds within the Alternative Investment Funds Directive ( Directive 2011/61/ EU) ( AIFMD) regime, refer to Practice Note: EU AIFMD—essentials. For AIFMD investor disclosures and the AIF prospectus, see Practice Note: EU AIFMD—transparency rules and the prospectus......
Scope of this Practice Note This Practice Note reviews the function of depositaries to undertakings for collective investment in transferable securities ( UCITS) funds (ie open-ended collective investment schemes ( CIS) that are UCITS) and the framework established by Directive 2009/65/ EC (the UCITS Directive), as revised by Directive 2014/91/ EU ( UCITS V) and accompanying delegated regulations. It sets out a depositary’s obligations and standards, who is eligible to act as depositary, liability, and constraints on delegation. EU legislative background On 26 July 2012, the Commission consulted on UCITS VI, addressing a range of issues, including a depositary passport. There have been no further developments on UCITS VI, and it is unlikely that any legislative proposal will emerge. UCITS V was published in the Official Journal ( OJ) on 28 August 2014 and came into force on 17 September 2014, with EU Member States...
This Practice Note sets out the principal features of the EU Solvency II regime (covering the Solvency II Directive 2009/138/ EC, the Omnibus II Directive 2014/51/ EU and related materials). It also reflects amendments to the Solvency II Directive made by Directive ( EU) 2025/2 (the Solvency II amending Directive), which entered into force on 28 January 2025 and must be applied by Member States from 30 January 2027. Solvency II—overview Background and objectives of Solvency II Solvency II is the framework governing the taking-up of business and supervision of insurance and reinsurance undertakings in the EU (together, ‘firms’). Directive 2009/138/ EC replaced 14 earlier directives (collectively known as Solvency I) and establishes a maximum harmonising regime to deliver cross-border consistency. It is aligned with other financial services legislation, in particular the banking supervision framework ( CRD IV/ CRR—for more information, see Practice Note: EU CRD IV...
Short selling Short selling, or ‘going short’, describes a tactic where traders agree to sell shares or debt instruments (securities) they do not own at the point of sale, anticipating that the securities’ price will drop. If prices fall, the short seller can buy them back more cheaply than the sale price and keep the difference as profit. As short sellers gain when values decline, the practice has faced regulatory restrictions since the 2008 global financial crisis. The two principal methods of short selling are: Covered short selling — the short seller borrows, or undertakes to borrow, the specific securities being sold short from an existing holder, enabling delivery to the buyer at settlement; the lender receives a fee for providing the securities. Uncovered (naked) short selling — the short seller executes a short sale without first locating or borrowing the securities before arranging the...
ARCHIVED: This Practice Note has been archived and is not maintained. These Q& As respond to the most common queries on the EU Sustainable Finance Disclosure Regulation ( EU SFDR) ( Regulation ( EU) 2019/2088, as amended by Regulation ( EU) 2020/852) regulatory technical standards ( RTS). They address, among other areas, product categorisation; Article 8 features; principal adverse impact ( PAI) data gathering; reliance on third-party information; human rights due diligence, and the effect on non- EU managers. On 6 April 2022, the Commission approved the final Regulatory Technical Standards ( RTS) that supplement the EU Sustainable Finance Disclosure Regulation ( EU SFDR) ( Regulation ( EU) 2019/2088, as amended by the EU Taxonomy Regulation ( EU) 2020/852) together with the Annexes. EU SFDR imposes substantial environmental, social and governance ( ESG) disclosure duties on asset managers promoting funds within the EU. The RTS set out...
This Practice Note provides high level information on Regulation ( EU) 2017/2402 (the EU Securitisation Regulation) STOP PRESS: ESMA has opened a consultation to overhaul the disclosure set-up for private securitisations governed by the EU Securitisation Regulation. The draft would roll out a pared-back template, aiming to improve proportionality in information exchange, whilst keeping supervisors’ access to critical oversight data intact. Core elements comprise aggregate-level reporting and leaner deal-level data asks. Running until 31 March 2025, the exercise reflects industry input and also sits within ESMA’s wider drive to simplify and reduce burdens. ESMA will work with the European Commission to consider tweaks to technical standards ahead of a full review of the regime. The EU Securitisation Regulation is complemented by: Regulation ( EU) 2017/2401 (the EU CRR Amendment Regulation), which modifies the regulatory capital treatment under the Capital...
This Practice Note examines the EU’s Recast Second Wire Transfer Regulation ( EU) 2023/1113 ( Recast WTR2) on information accompanying transfers of funds and certain cryptoassets. Often referred to as the Recast Second Funds Transfer Regulation ( Recast FTR2), it takes effect on 30 December 2024. Recast WTR2 sits at the heart of the EU’s anti-money laundering ( AML) and counter-terrorist financing ( CTF) architecture, and underpins the bloc’s oversight of payments and cryptoassets. It revises and supersedes the Second Wire Transfer Regulation ( EU) 2015/847 ( EU WTR2) to bring EU rules into line with the latest Financial Action Task Force ( FATF) standards, the worldwide AML/ CTF rule‑setting authority. Under Recast WTR2, the information‑sharing benchmark for transfers—commonly called the ‘ Travel Rule’—sets out the payer and payee details that must travel with any funds transfer, regardless of currency, to help prevent, detect and...
Tracker overview This tracker outlines legislative and regulatory milestones from 2001 up to 31 January 2020, the date of Brexit, covering Regulation ( EU) 2017/1129 (referred to here as the EU Prospectus Regulation or Prospectus Regulation) and the repealed Directive 2003/71/ EC ( Prospectus Directive). It is organised into the following sections: Recent and future developments (2015 onwards) Review and further implementation of the Prospectus Directive (2009–2014) Implementation of the Prospectus Directive (2003–2009) Regulation ( EU) 2017/1129 was published in the Official Journal of the EU on 30 June 2017 and came into force in the EU on 20 July 2017. The bulk of its provisions have applied in the EU since 21 July 2019, with a small number taking effect earlier. For the stages of debate and agreement within the European legislative process on the Prospectus Regulation, see: EUR- Lex ( Procedure 2015/0268/ COD). Key...
Purpose of this Practice Note This Practice Note summarises the level 3 measures released by the European Securities and Markets Association ( ESMA), the European Banking Authority ( EBA) and the European Commission in connection with the Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II Directive) and the Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014) ( Mi FIR), together forming the EU Mi FID II framework. Taking effect on 3 January 2018, Mi FID II and Mi FIR materially revised and extended the regime first set by the original Markets in Financial Instruments Directive (2004/39/ EC) ( Mi FID). For guidance on putting the Mi FID II framework into practice, see Practice Notes: EU Mi FID II and Mi FIR—essentials and EU Mi FID II and Mi FIR—one minute guide. For an...
Position reporting requirements under Mi FID II The recast Markets in Financial Instruments Directive 2014/65/ EU ( Mi FID II) and the Markets in Financial Instruments Regulation ( EU) 600/2014 ( Mi FIR) replaced and repealed the Markets in Financial Instruments Directive 2004/39/ EC ( Mi FID). They introduced a position limits and position reporting framework for commodity derivatives intended to deter market abuse and to foster orderly pricing and settlement by enhancing transparency and regulatory oversight. The regime has applied since 3 January 2018. This Practice Note explains the position reporting obligations under Mi FID II, applicable to the following, and highlights updates made by Directive ( EU) 2024/790 (the Mi FID II Review): Trading venues; Investment firms dealing in commodity derivatives, emission allowances, or emission allowance derivatives; and Members of trading venues. The Mi FID II Review, alongside...
This Practice Note sets out, in summary, the provisions in the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II) and the EU Market Abuse Regulation ( Regulation ( EU) 596/2014) concerning the suspension and removal of financial instruments from trading by competent authorities and by operators of trading venues, including the circumstances in which such measures are mandated. Background to Mi FID II and the suspension and removal of financial instruments from trading Under the original Markets in Financial Instruments Directive ( Directive 2004/39/ EC) ( Mi FID I), competent authorities and regulated markets ( RMs) were empowered to suspend and remove financial instruments from trading. Mi FID II broadened that power to include multilateral trading facilities ( MTFs) and organised trading facilities ( OTFs). It also obliges the suspension or removal of related...
This Practice Note sets out the applicable product governance obligations under the Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II) that firms must observe and comply with when designing, approving, marketing and overseeing the ongoing management of products throughout their entire lifecycle. It also summarises the relevant delegated acts adopted by the European Commission—particularly Articles 9 and 10 of Directive ( EU) 2017/593 (the Mi FID II Delegated Directive)—as well as the guidelines issued by the European Securities and Markets Authority ( ESMA). Background to Mi FID II and product governance The recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II), together with the Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014) ( Mi FIR) (collectively, the Mi FID II framework), entered into force on 2 July 2014. The bulk of the...
The recast Markets in Financial Instruments Directive 2014/65/ EU ( Mi FID II) and the Markets in Financial Instruments Regulation ( EU) 600/2014 ( Mi FIR) entered into force on 2 July 2014, with the bulk of provisions across the Mi FID II framework taking effect on 3 January 2018. This Practice Note sets out the key provisions within the EU’s Mi FID II framework. For details on the UK’s post‑ Brexit Mi FID II changes—particularly the wholesale markets review and its partial implementation through the Financial Services and Markets Act 2023 ( FSMA 2023)—and connected Financial Conduct Authority consultations, see Practice Note: UK Mi FID II reforms. Background to Mi FID II and Mi FIR Mi FID I The Markets in Financial Instruments Directive 2004/39/ EC ( Mi FID I), which superseded the Investment Services Directive (93/22/ EEC), was adopted as a level 1, or...
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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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