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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:
Most recent Practice notes
This Practice Note This Practice Note offers direction on conducting remote and hybrid hearings in the Family Court by video link and telephone. It explains what amounts to a remote or hybrid hearing, when a hearing may proceed remotely, and highlights the platforms available: BTMeet Me Microsoft Teams Skype Cloud Video Platform ( CVP) Video Hearings Service ( VHS) It also sets out the relevant provisions of the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, alongside judicial guidance and consultations on remote and hybrid hearings. The coronavirus ( COVID-19) pandemic accelerated the intended shift towards greater use of technology, remote hearings and online document management in the Family Court. Audio and video tools have long featured, but reliance increased in response to the pandemic. While some cases suit remote determination, others do not. Guidance evolved swiftly and a full return to...
Effect of remarriage, civil partnership or cohabitation on financial orders This Practice Note outlines how remarriage, entering a civil partnership, or cohabitation affects the ability to seek financial orders, and the implications for any existing orders. Section 28(3) of the Matrimonial Causes Act 1973 ( MCA 1973) sets out the rules on making applications for financial orders after a party later remarries or forms a civil partnership. In summary, once a decree or order has dissolved or annulled the marriage, if either party to that marriage remarries—whether before or after the Act’s commencement—or enters a civil partnership, that party is not entitled to apply, by reference to that decree or order, for a financial provision order in his or her favour, or for a property adjustment order, against the other party to that marriage. Consequently, after remarriage or the creation of a...
Reasonable financial provision In the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975) there is a single basis for bringing a claim, namely that the way the deceased’s estate is distributed, whether under a will, the intestacy rules, or a mixture of both, fails to provide the applicant with reasonable financial provision. Once an individual clears the initial obstacle of establishing that they are entitled to apply, they must then demonstrate that the deceased did not make reasonable financial provision for them. This has given rise to a body of case law. I( PFD) A 1975, s 1(2) draws a line between a deceased’s spouse or civil partner and all other categories of applicant. For a spouse or civil partner, reasonable financial provision means such financial support as it would be reasonable, in all the...
This Practice Note This Practice Note reviews the range of public sector pension arrangements and the particular matters to consider when addressing them within family proceedings, including principal features, benefits, valuation, and the effect of steps taken to eliminate unlawful discrimination arising from the 2015 reforms (the Mc Cloud remedy). It also sets out key practical pointers when dealing with a public sector pension... Public sector pensions are occupational arrangements for staff employed by central or local government, a nationalised industry, or other statutory bodies. They include schemes for: armed forces police firefighters civil service teachers local government National Health Service ( NHS) Public sector schemes, especially those for uniformed services, are often intricate, so in many instances it is vital to obtain advice from a pensions on divorce expert ( PODE). See also the Pension Advisory Group: A Guide to the...
This Practice Note outlines the ‘ Recommendations to achieve best practice in the child protection and family justice systems’ (the PLWG report), produced by the Public Law Working Group ( PLWG) and approved by the President of the Family Division on 1 March 2021. It sets out the context to the PLWG report, its recommendations, and highlights the best practice guidance and the templates annexed to it, together with the PLWG’s conclusions. Background to the PLWG and the report The PLWG was established to examine the sharp increase in public law children matters reaching the Family Court and to put forward proposals to strengthen the system’s capacity to meet the needs of the children and families at the core of such proceedings. Pressures brought about by the coronavirus ( COVID-19) pandemic have further emphasised the necessity for fresh ways of...
Note This Practice Note addresses the law currently applying in England. In Wales, the position is governed by the Social Services and Well-being ( Wales) Act 2014 together with the relevant statutory instruments. For Welsh guidance, see the following Practice Notes: Local authority powers and duties to provide accommodation for children in Wales Local authority duties to looked after children in Wales Local authority duties to children in Wales—child protection NB: this Practice Note also cites earlier legislation and statutory guidance, as certain linked materials give useful background and include templates that continue to be used during pre-proceedings. The Public Law Outline ( PLO) originated in 2008 as part of reforms to care proceedings. It was subsequently updated by the PLO 2014 and the Children and Families Act 2014, which introduced a 26-week limit for completing care and...
Practice Note This Practice Note provides information about, and access to, public children standard orders issued by the Standard Orders Group acting with the authority of the President of the Family Division, including directions, case management and final orders in relation to care proceedings, adoption and secure accommodation. On 17 May 2023, Mr Justice Peel, the judge in charge of standard orders, announced, with the authority of the President of the Family Division and after a review process and consultation period, that the standard orders had been updated to reflect changes in law, practice and procedure and to achieve consistency. See: LNB News 17/05/2023 88. Updated house rules were also published by Peel J on 17 May 2023 to be read alongside the standard orders. The house rules set out: the substance of the orders, including recitals (paras 3–7) the required format of the orders...
This Practice Note provides clear direction and recommended practice for situations where a party appears in person or with a Mc Kenzie friend in public law children proceedings, and explains the courts’ stance on the reasonable assistance to be offered to a litigant in person when presenting their case, as well as on the appointment of a Mc Kenzie friend. General principles Every participant in care proceedings is entitled to a fair hearing, and the parents and child benefit from the safeguards of Article 6 (the right to a fair trial) under the European Convention on Human Rights ( ECHR), as incorporated into the Human Rights Act 1998. There is no requirement to instruct a solicitor; however, in care proceedings, unlike private law children proceedings, legal aid continues to be available for the child, the parents, and anyone else with parental...
This Practice Note This Practice Note explains in detail the appellate procedure in public law children cases, offers guidance on the appeal court’s function, and identifies orders that can be made while an appeal is pending. It further outlines the specific factors relevant to each appeal route and the pertinent authorities and case law. See also Practice Notes: Appeals—general principles, practice and procedure; Preparation for an appeal and orders that may be made; and Applications for permission to appeal in the Family Court. Some appeals from circuit judges and recorders lie to the High Court rather than the Court of Appeal, save where the following apply, as set out below: the challenge is to a decision or order in proceedings under Parts IV or V of the Children Act 1989 ( Ch A 1989), Ch A 1989, Sch 2, para 19(1), or under the...
FORTHCOMING CHANGE: Following the Government’s response to the Ministry of Justice and the Office of the Public Guardian ( OPG) consultation, Modernising Lasting Powers of Attorney, the Powers of Attorney Bill received Royal Assent on 18 September 2023, becoming the Powers of Attorney Act 2023 ( PAA 2023). Once commenced, PAA 2023 will amend the Mental Capacity Act 2005 ( MCA 2005) to create a more modern lasting power of attorney ( LPA) service. The reforms will include: introducing regulations so those involved in making an LPA can choose to sign digitally or on paper; removing attorneys’ ability to register an LPA, so registration is permitted only by the donor; bringing in regulations on identification verification requirements for registration applications; establishing a single route for registration objections via the OPG and expanding who may object to include third parties, not only those...
This Practice Note offers practical guidance on procedural matters arising on an application for a property adjustment order in financial order proceedings, spanning orders for transfer and for sale. It examines the court’s power to make an interim order, how to approach a property charged by a mortgage, the execution of documents, and the relationship between orders for transfer of property and orders for sale. It also provides guidance on drafting the wording of the order. The general procedural requirements for an application concerning property are contained in the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, Pt 9, together with FPR 2010, PD 9A. For practical guidance on the procedural aspects of financial order proceedings more broadly see: Financial provision—practice and procedure. Interim orders Courts generally proceed on the basis that an interim order, including one about property, should not...
The provisions in sections 65 and 66 of the Domestic Abuse Act 2021 ( DAA 2021) establishing the prohibition of cross-examination in person in family and civil proceedings took effect on 21 July 2022. They operate under the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, Pt 3A, together with FPR 2010, PD 3AB ( Prohibition of cross-examination in person in family proceedings under Part IVB of the Matrimonial and Family Proceedings Act 1984 ( MFPA 1984)), and are accompanied by Ministry of Justice statutory guidance on the role of a court-appointed qualified legal representative ( QLR). Supporting regulations include: the Prohibition of Cross- Examination in Person ( Civil and Family Proceedings) Regulations 2022, SI 2022/568, which identify the categories of offences, protective injunctions and evidential material that trigger the automatic prohibition of...
This Practice Note summarises the principal procedural steps and requirements for making an application for entry clearance as a fiancé(e), proposed civil partner, spouse, civil partner or unmarried partner under the Immigration Rules, Appendix FM. The provisions concerning applications by the children of those seeking entry clearance in this route are set out in Appendix FM, Family life as a child of a parent with limited leave as a partner or parent. For more information, see: Children—overview. Timing considerations It is advisable to obtain detailed instructions regarding the applicant’s travel plans—and, for fiancé(e)s or proposed civil partners, the anticipated date of the wedding or civil partnership—at the earliest practical stage. This enables you to determine a suitable application date and to identify and flag any potential timing issues......
This Practice Note introduces key procedural features of the Civil Procedure Rules 1998 ( CPR), SI 1998/3132, as they relate to claims under the Trusts of Land and Appointment of Trustees Act 1996 ( TOLATA 1996). The same provisions apply whether proceedings are issued under CPR Part 7 or CPR Part 8; see Practice Note: TOLATA 1996—when to use Part 7 and when to use Part 8. See also Practice Notes: TOLATA 1996—pre-action matters; TOLATA 1996—when to issue in the County Court and when to issue in the High Court; and TOLATA 1996— Part 36 offers. For practical guidance on the court’s approach to TOLATA 1996 claims, see Practice Note: Case law relating to TOLATA 1996 claims and Precedent: Specimen final orders under the Trusts of Land and Appointment of Trustees Act 1996. Costs budgeting Disclosure and...
Practice Note This Practice Note explains the tests the Pension Protection Fund applies when compensating members of an occupational pension scheme, together with the process and effects of assessment for admission to the scheme in the context of family proceedings. It also outlines the ramifications for divorce or dissolution, the applicable steps within financial remedy proceedings, and the reach of the distinct Financial Assistance Scheme. The Pension Protection Fund ( PPF) was created by the Pensions Act 2004 ( Pe A 2004) as a statutory corporate body. It administers funds to provide compensation to members of specified occupational pension schemes where: the pension scheme qualifies as an eligible scheme a ‘qualifying insolvency event’ has occurred in relation to the employer, or the employer is unlikely to remain a going concern and satisfies the conditions in the Pension Protection Fund ( Entry Rules) Regulations 2005, SI...
This Practice Note This Practice Note explores how the court treats non-matrimonial, or non-civil partnership, assets when deciding the pool for division, addressing their definition and the effect of acquisition before or after marriage or civil partnership, and prior to or following separation. It also examines matrimonialisation, reviews various asset classes and the situations in which they may be classed as non-matrimonial or non-civil partnership assets, such as bonuses, compensation, damages, passive growth, and the relevance of an asset’s nature and origin. Here, non-matrimonial property and matrimonial property should be read as including, respectively, non-civil partnership property and civil partnership property. In broad terms, matrimonial property comprises assets obtained by either party during the marriage other than by gift or inheritance, together with, in almost every case, the matrimonial home. Assets in this category may be described as the ‘marital acquest’....
Practice Note This Practice Note outlines the overarching principles the court applies when deciding whether to award a lump sum in financial remedy proceedings, addressing the effects of remarriage, delay in issuing an application, and variation. It further sets out directions on interim lump sums and payments ordered for the benefit of children of the marriage or civil partnership. Pursuant to section 23(1) of the Matrimonial Causes Act 1973 ( MCA 1973) and Schedule 5, Part 1 to the Civil Partnership Act 2004 ( CPA 2004), the court is empowered to order such lump sum or sums as specified when granting a decree/order of divorce or dissolution, nullity, or (judicial) separation, or at any time thereafter. Other than where a (judicial) separation order is made, such orders do not take effect until a final order/decree absolute is pronounced by the court following the...
This Practice Note It outlines the particular procedural phases in a judicial review application and then explains in detail the specific obligations for each phase, as set out by the CPR, CPR PD, and Administrative Court guidance......
Under section 3 of the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975), the court is required to consider certain matters in every case, see Practice Note: Family provision claims—matters to which the court must have regard. There are further considerations that apply only to particular categories of claimant, and it is these specific issues that are examined in this Practice Note in detail here. Surviving spouse/civil partner or former spouse/civil partner (not remarried/formed a new civil partnership) For an application brought by a spouse or civil partner, or a former spouse or former civil partner who has not entered into a subsequent marriage or civil partnership, the court will, in addition, take into account: the applicant’s age in years the length of the marriage or civil partnership the applicant’s contribution to the welfare of the deceased’s family, including managing the home,...
This Practice Note outlines key factors for marital or civil partnership agreements where the couple have cross-border ties or property. It explains the actions required to secure advice from lawyers in any other pertinent jurisdictions, how the Supreme Court ruling in Radmacher (formerly Granatino) v Granatino applies to arrangements with an international dimension, and points to consider when drafting. Initial considerations Rules on recognition and enforceability of marital and civil partnership agreements are not uniform across the world. Places where these agreements are generally upheld include Australia, Canada, New Zealand, the USA and numerous European states. For practical direction on the position in England and Wales, see the Practice Notes: Implications of pre-nuptial agreements within proceedings for financial provision and Implications of maintenance, separation and post-nuptial agreements within proceedings for financial provision. In England and Wales, an agreement must be ‘fair’ and made by both...
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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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