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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 outlines the statutory checklist set out in section 1(3) of the Children Act 1989 ( Ch A 1989). It is a list of considerations the court is required to address when assessing children’s needs and determining what order should be made in relation to specified orders. It explains when the court must have regard to the checklist: applications under Ch A 1989, s 8 applications for a special guardianship order orders under Ch A 1989, Pt IV It looks at the factors within the checklist and relevant cases. Application of the checklist Ch A 1989 contains a suite of factors (commonly referred to as the statutory checklist or the welfare checklist) that the court must evaluate when deciding the children’s needs and which order to make in connection with specified orders......
Overriding objective This Practice Note outlines the overriding objective contained in the Family Procedure Rules 2010 ( FPR 2010) and explains the matters the court must consider, together with how the court is to further that objective through active case management. It also summarises the principal concepts connected to the overriding objective. Sets out the overriding objective within the Family Procedure Rules 2010 ( FPR 2010). Identifies the factors the court must take into account. Describes how active case management advances the objective. Summarises the key concepts underpinning the objective. The overriding objective is a procedural code in FPR 2010, SI 2010/2955, 1.1, designed to enable the court to deal with cases justly, with due regard to any welfare issues. Although the Civil Procedure Rules 1998 introduced the notion of an overriding objective, it was not entirely novel in family law and had been...
This Practice Note outlines mediation’s key characteristics and essential core features, identifies when it is most suitable in practice, and highlights the principal benefits of the mediation route. What is mediation? Mediation involves an impartial, accredited mediator collaborating with a couple to support them in reaching a joint agreement together......
STOP PRESS: On 11 May 2026, as part of the standard orders project and with the authority of the President of the Family Division, Peel J (the judge responsible for standard orders) issued amendments to the family standard orders and introduced six new standard orders. See News Analysis: Amended family standard orders published. This document is being updated to reflect those amendments. This Practice Note provides links to the latest Word download versions of all standard orders published under the standard orders project, organised by area of family law. For more details on the standard orders project, see Practice Note: Standard orders—general principles. With the President of the Family Division’s authority, Mr Justice Peel, who is in charge of standard orders, has made the following announcements: On 17 May 2023, following the review process and consultation period, the standard orders were updated to...
Solicitors are not required to make a clinical diagnosis of someone’s mental condition; however, they do need to be conversant with a range of tests and assessments that are commonly used in practice. A modest understanding of clinical tests can be helpful in day-to-day situations in practice. When considering assessments and tests for individuals who might lack capacity, there are two essential sources of information to consult: the Mental Capacity Act 2005 ( MCA 2005) the Mental Capacity Act 2005 Code of Practice (the Code) When to assess A person’s capacity should be evaluated whenever it is in doubt......
STOP PRESS: On 2 December 2025, the Property ( Digital Assets etc) Act 2025 obtained Royal Assent and took effect immediately. Section 1 confirms that an item—including one of a digital or electronic character—may attract personal property rights even if it is neither a thing in possession nor a thing in action. Accordingly, digital holdings such as cryptocurrency, non-fungible tokens and carbon credits qualify as personal property. See LNB News: 04/12/2025 2. This Practice Note is in the process of being revised to mirror this development. Digital assets may outlast incapacity or death. Anyone with a digital device or online account ought to set out arrangements for those assets, irrespective of age. No legislative definition The UK lacks a statutory definition of a ‘digital asset’ and there is no enacted regime regulating a personal representative’s or fiduciary’s access to such assets....
This Practice Note This Practice Note sets out the actions a respondent should take once served with an application for a matrimonial or civil partnership order in proceedings begun under the Divorce, Dissolution and Separation Act 2020 ( DDSA 2020). It specifies the deadline for filing the acknowledgement of service, clarifies when a case is disputed, and explains the 20‑week period. It also describes the route for an applicant (or joint applicants) to request a conditional order. DDSA 2020 came into effect on 6 April 2022. Proceedings issued by the court on or after 6 April 2022 are governed by DDSA 2020 and by the procedural amendments in the Family Procedure Rules 2010, SI 2010/2955 ( FPR 2010). For more on the reforms introduced, see Practice Note: Introduction to the Divorce, Dissolution and Separation Act 2020. Proceedings issued by the court on or before 5 April 2022...
This Practice Note outlines retained EU law as it operated in 2021–23, setting out key definitions and concepts with pointers to the relevant provisions of the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018). It further considers the overhaul of retained EU law and its re-labelling as assimilated law from 2024. Wider aspects of the EU( W) A 2018, together with the distinct arrangements and divergences for the UK’s devolved administrations, fall outside the scope of this Practice Note. Evaluation of particular instruments, provisions or rights, and whether they are retained, is likewise excluded. what’s the difference? Both “retained EU law” and “assimilated law” describe the residual body of domestic law that originally stemmed from the UK’s membership of the EU. The labels mark two phases in the domestic legal system’s adjustment to...
This Practice Note considers the impact of the UK having left the EU upon the application of Regulation ( EU) No 606/2013 of the European Parliament and of the Council of 12 June 2013 on mutual recognition of protection measures in civil matters (the Protection Measures Regulation), which concerns measures designed to protect individuals from risks including domestic abuse. It sets out the transitional arrangements that may operate where a certificate was granted under the Protection Measures Regulation before IP completion day (11pm on 31 December 2020), and clarifies the treatment of both incoming and outgoing measures where no transitional provision applies. When evaluating cross‑border recognition and enforcement of a protection measure, the central distinctions are: if an enforcement certificate was issued before IP completion day, the Protection Measures Regulation remains applicable to both outgoing and incoming protection measures—this is now largely of...
This Practice Note This Practice Note explains the foundations of court jurisdiction for divorce and judicial separation proceedings both from 1 January 2021 onwards—see: Jurisdiction for divorce, judicial separation and nullity on or after 1 January 2021—and for earlier cases—see: Jurisdiction for divorce and judicial separation prior to 1 January 2021—reflecting the consequences of the UK leaving the EU. It also offers direction where there are rival jurisdictions. The Brexit transition/implementation period, following the UK’s exit from the EU, ended at 11 pm ( GMT) on 31 December 2020. From that moment (labelled in UK legislation as ‘ IP completion day’), key transitional provisions ceased and major alterations applied across the UK’s legal framework. This affects practitioners assessing which courts may assume jurisdiction over divorce and judicial separation. For added support, see Practice Note: Family proceedings with EU...
Jurisdiction in overseas cases This Practice Note offers direction on jurisdictional issues in overseas cases, including those with UK– EU connections issued after IP completion day and therefore not subject to the transitional arrangements. It explains when the courts of England and Wales may assume jurisdiction in family proceedings, in particular under the Domicile and Matrimonial Proceedings Act 1973 ( DMPA 1973). At 11pm ( GMT) on 31 December 2020, the Brexit transition/implementation period concluded following the UK’s withdrawal from the EU. From that point (termed ‘ IP completion day’ in UK law), key transitional arrangements ended and significant changes took effect across the UK’s legal framework. This has implications for practitioners assessing which court has jurisdiction to determine a dispute. For further guidance, see Practice Note: Family proceedings with EU...
This Practice Note reviews the factors the court will take into account and the test it will adopt when considering an application by a trustee in bankruptcy (the trustee) seeking orders for possession and sale of the bankrupt’s home, including accommodation occupied by the bankrupt’s family... For further reading on making possession and sale applications and on the timing of any application, see Practice Notes: Possession and sale applications in respect of a bankrupt’s family home The ‘three-year rule’ in bankruptcy under section 283A of the Insolvency Act 1986 Applications for possession and sale of the family home Where a trustee applies to the court for possession and sale, they will, amongst other things, need both an order for sale and an order for vacant possession. In substance this is a two-stage exercise, yet, in practice, it is usually addressed within a single...
Competing matrimonial claims—the issue Since the Proceeds of Crime Act 2002 ( POCA 2002) came into force, a single court and a single judge can no longer determine overlapping claims between the state, operating through the confiscation framework, and a spouse pursuing matrimonial relief under the Matrimonial Cause Act 1973 ( MCA 1973). This marks a departure from the earlier schemes—the Criminal Justice Act 1988 and the Drug Trafficking Act 1994—under which one judge could hear both applications and decide the issues arising in each set of proceedings. The procedural starting point was highlighted in Webber v Webber, where a consent order transferring the family case to the High Court, to be tried by a judge experienced in both jurisdictions, was set aside because that approach has no footing under POCA 2002; unlike the former regimes, the Crown Court now has carriage of all...
The role of personal representatives Applications for reasonable financial provision from an estate under the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975) appear to be increasing. Consequently, it is more likely that personal representatives ( PRs)—whether executors or administrators—will need to address such a claim during the administration of the estate. This can be challenging, as PRs may feel caught between opposing sides, namely the claimant and the beneficiaries taking under the Will or the intestacy rules. This Practice Note explores the position of PRs in relation to I( PFD) A 1975 claims. Although it is well understood that, when faced with an I( PFD) A 1975 claim, PRs should remain neutral, that approach raises practical queries, such as: how PRs should respond to requests for information from someone threatening to bring an I( PFD) A 1975...
Inheritance tax and personal injury trusts Many advisers mistakenly assume that choosing one form of personal injury trust over another delivers an inheritance tax ( IHT) benefit, with discretionary trusts often singled out. In truth, for a self-settled personal injury trust, the structure chosen makes no difference. The gift with reservation of benefit rules bite, so the trust fund’s value is treated as part of the settlor’s estate for IHT purposes, whether or not it actually falls back into the estate on death. This remains the position even for disabled trusts... From an IHT perspective, a poorly planned personal injury trust can be positively harmful. If an amount exceeding the nil rate band (£325,000 for England and Wales 2025–26) is placed into a relevant property trust—such as a discretionary or life interest trust—that does not qualify as a disabled persons trust, there is an...
Types of personal injury trust How to choose between the different types of trust Consideration of the various personal injury trust options commonly proceeds on the basis that the injured individual has full capacity and acts as settlor. Yet a trust may equally be created by court order, whether during the litigation or once a personal injury claim concludes. In those circumstances, the trust is put in place for the injured person, irrespective of whether their capacity is impaired. Watt v ABC (see Practice Note: The Court of Protection versus personal injury trusts) indicates that such orders can be made either by the court determining the claim and granting the award, or by the Court of Protection, whilst acknowledging that some jurisdictional questions remain unresolved. Although these notes proceed on the footing that the injured person is capable of setting up the trust, the...
Practice Note This Practice Note explains the routes available for dealing with pensions on judicial separation or separation proceedings, where pension sharing cannot be used. It covers, in detail, pension attachment orders and offsetting, together with other possible measures to safeguard pension interests, and the associated procedure, practical valuation, any appeals, and the consequences of remarriage or entering a subsequent civil partnership. In (judicial) separation proceedings, the court may reallocate benefits arising from pension resources between the parties by: issuing one or more pension attachment orders, and/or setting off the value of pension rights against the value of other assets held between the parties See also Practice Note: General principles—pensions in family proceedings— Options available. Pension sharing is not available in (judicial) separation proceedings, only in an application for an order of divorce, dissolution or nullity. After the separation proceedings have concluded, the parties will remain legally...
This Practice Note This Practice Note offers a concise summary of the choices available concerning pensions on divorce, annulment, (judicial) separation or the dissolution of a civil partnership, including offsetting, pension sharing and pension attachment orders, as well as the specific orders the courts may grant. It also reviews the judiciary’s approach to pensions and the implications of pensions reform. In proceedings for divorce, nullity, (judicial) separation or dissolution of a civil partnership, the court can issue a variety of orders addressing the parties’ pension rights. Sections 25(2)(h) and 25B(1)(b) of the Matrimonial Causes Act 1973 ( MCA 1973) oblige the court to consider the benefits under a pension arrangement that, because of the dissolution or annulment of the marriage, a spouse will lose the opportunity of acquiring. MCA 1973, ss 25(2)(a) and 25B(1)(a) focus on the benefits that a party to a...
Following the handover of The Pensions Advisory Service ( TPAS)’s dispute resolution function to the Pensions Ombudsman on 19 March 2018, the Pensions Ombudsman now provides two avenues for resolving disputes: an informal route run by the Pensions Ombudsman’s Resolution Team (for more detail, see Resolution Team, below), and its normal adjudication service Unless indicated otherwise, this Practice Note concentrates on the Pensions Ombudsman’s adjudication service. In particular, it considers the steps taken before, during and after a complaint is brought to the Pensions Ombudsman under that adjudication route, together with the conduct of an investigation by the Pensions Ombudsman. We have reported on key Pensions Ombudsman determinations arising from the adjudication service. For additional details, see: Pensions Ombudsman determination tracker. Legal framework for making complaints to the Pensions Ombudsman As a statutory creation, the office of the Pensions Ombudsman is established and regulated by sections 145 to 152 of the...
When pension contributions are recoverable This Practice Note considers two issues: whether a bankrupt’s pension arrangement sits within the bankruptcy estate, and if the arrangement is outside the bankruptcy, whether payments into it can be recouped for the estate’s benefit It deals solely with occupational pension schemes and personal pension arrangements. State pensions and most statutory pension schemes do not comprise part of the bankrupt’s estate, meaning the sole route for a trustee in bankruptcy (trustee) to realise pension rights is via an income payments order. Bankruptcies before 29 May 2000 This section applies to individuals made bankrupt following petitions presented before 29 May 2000. Contributions paid in respect of both personal pension schemes and occupational pension schemes are ordinarily recoverable by the bankrupt’s trustee, because a debtor’s contractual rights under such schemes are treated as choses in action falling within the broad...
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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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