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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 how to begin nullity proceedings and applies to applications issued before 6 April 2022. It details the time limits for nullity, the correct forum to start proceedings, and jurisdictional considerations. It explains the steps to take where a previous petition is on the record. It offers practical guidance on preparing a petition, including when to leave out the petitioner’s address, the mandatory particulars that must be included, and how to frame a statement of case... Nullity proceedings Family proceedings are regulated by the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955. Provisions specific to nullity appear in Part 7 of the FPR 2010, together with PD 7A and PD 7B. On 6 April 2022, the Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) came into force. While DDSA 2020 does not alter the substantive law on nullity, it brings...
Practice Note This Practice Note sets out how to begin nullity proceedings from 6 April 2022, reflecting procedural revisions to the Family Procedure Rules 2010, SI 2010/2955 that flowed from the commencement of the Divorce, Dissolution and Separation Act 2020 ( DDSA 2020). It clarifies the updated terminology and identifies the jurisdictional basis for applications for a nullity of marriage order and, in the case of civil partnerships, a nullity order. It also specifies the documents to lodge when issuing a nullity claim and the steps to take where the marriage or civil partnership certificate cannot be produced. DDSA 2020 introduced major changes to the Matrimonial Causes Act 1973 ( MCA 1973) and the Civil Partnership Act 2004 ( CPA 2004) for divorce, civil partnership and (judicial) separation cases issued on or after 6 April 2022. It abolished the need to evidence...
Practice Note This Practice Note outlines the steps that follow service of an application for a nullity of marriage order or a nullity order in cases issued on or after 6 April 2022, i.e. after the Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) took effect. It details the respondent’s obligations on receipt of the application and the deadline for returning the acknowledgement of service, including the time frame within which the acknowledgement of service must be filed. It also describes how an applicant seeks a conditional order (previously termed a decree nisi). In addition, it sets out the process for obtaining a final order (previously decree absolute) and the circumstances in which a respondent may seek that order. DDSA 2020 introduced significant reforms to the Matrimonial Causes Act 1973 ( MCA 1973) and the Civil Partnership Act 2004 ( CPA 2004)...
Practice Note Practice Note outlines the process for bringing an application under section 17 of the Married Women’s Property Act 1882 ( MWPA 1882), and the equivalent route for civil partners. It explains how to commence an application, sets out the separate procedural tracks for free-standing applications and those issued within existing financial order proceedings, addresses case management, injunctive relief and asset preservation, and includes information on final orders and costs. The procedure for applications under MWPA 1882, s 17, or section 66 of the Civil Partnership Act 2004 ( CPA 2004) is contained in the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, Pt 8, which uses the expression, 'application for question as to property to be decided in summary way'. Under FPR 2010, parties are directed to Part 19 (free-standing application) or Part 18 (application in financial order...
Changes from 29 April 2024 This Practice Note outlines the pre-application obligations contained in the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, and captures the substantial updates in force in family proceedings from 29 April 2024 concerning mediation information and assessment meetings ( MIAMs). It considers, among other matters: the information to be provided to the court on issue of proceedings gatekeeping the court’s power to adjourn so parties can consider non-court dispute resolution the format and content of a MIAM exemptions from attending a MIAM costs The pre-application duty to attend a MIAM is contained in FPR 2010, SI 2010/2955, Pt 3 and supplemented by FPR 2010, PD 3A, requiring attendance at a MIAM before issuing an application in relevant family proceedings unless an exemption applies. These requirements first came into effect on 22 April 2014 and have been...
Practice Note This Practice Note outlines the framework governing media attendance at family proceedings and the constraints on such access under the Family Procedure Rules 2010 ( FPR 2010), notably FPR 2010, PD 27B, alongside FPR 2010, SI 2010/2955, 27.11. It reviews applications that can be brought concerning admission and reporting in family cases. It identifies the categories of family proceedings still excluded from the media access regime. Transparency across the family courts has been the subject of an extensive review. For contextual background, see Practice Note: Introduction to transparency in the family courts. From 27 January 2025, open reporting provisions operate in all family courts in England and Wales. For information on the transparency reporting pilot in the Family Court, refer to Practice Note: Transparency reporting pilot in the Family Court for further details......
A means of payment order ( MPO) requires the payer under a ‘qualifying periodical maintenance order’ to make payments by a specified method, or directs that an attachment of earnings order ( AEO) be made. These provisions offer the recipient greater assurance about the timing and method of payment, particularly where an AEO is imposed. An MPO can also provide that payments under the relevant order are paid into court (including by a specified method), or are made in accordance with arrangements under section 30 of the Child Support Act 1991 ( CSA 1991). Only the Family Court may exercise these latter powers. Qualifying periodical maintenance order A qualifying maintenance order is an order of the High Court or the Family Court that obliges one party to make periodical payments to the other, made while the paying party is ordinarily resident in England and Wales. This...
Practice Note This Practice Note outlines the formal and practical considerations relevant to taking instructions, preparing, and advising on a marital or civil partnership agreement, along with the overarching principles. It encompasses pre-nuptial (pre-marital), post-nuptial, separation and maintenance agreements. It also addresses vitiating factors, reviews, variation, and inheritance issues. Following the Supreme Court ruling in Radmacher (formerly Granatino) v Granatino, such an agreement may prove 'decisive' so long as it is 'fair'. The method of drafting and the observance of formal requirements surrounding a marital or civil partnership agreement can be pivotal when assessing if, and to what degree, the agreement will be enforced. No party should sign an agreement without the intention to be bound by its terms. Each party ought to be given the chance to obtain independent legal advice on the agreement’s provisions, see Practice Note: Marital and civil...
Disclosure prior to entering into a marital or civil partnership agreement This Practice Note explains the relevant principles governing disclosure before the making of a marital or civil partnership agreement, covering pre‑nuptial, post‑nuptial and separation agreements. It examines the approach in the Supreme Court decision of Radmacher, and the subsequent case law, together with practical issues and drafting points that arise when addressing and managing disclosure in practice. In Radmacher (formerly Granatino) v Granatino, Lord Phillips set out (at [69]) the position on disclosure by the parties ahead of entering such agreements, and the factors by which a court will assess whether a party had a ‘full appreciation’ of the agreement’s implications. He noted that competent legal advice is plainly advisable, since this will help ensure a party understands the effect of the agreement, and that full disclosure of any assets owned by the other party may,...
For the family lawyer, time is a precious currency. Across the profession, the focus has only lately begun to move from billing hours towards delivering ‘a great job’, encouraged by the steady roll-out of fixed fees across the market. Nevertheless, the greater the number of ‘great jobs’ completed in a lawyer’s day, the more profitable the firm and the individual family lawyer. Everyone appears to be pushed to achieve more in fewer hours. So how can family lawyers keep on top of their caseload while remaining content with their work–life balance? The human body-clock, concentration and productivity Only a limited number of hours in any day are truly, consistently productive. Our bodies follow an internal circadian rhythm, meaning each of us experiences periods when we are more, or less, effective. Being mindful of this inner clock allows a family lawyer to schedule tasks, and...
Introduction It is an unfortunate reality that, in many personal injury matters, particularly those involving the most catastrophic injuries, the injured person has lost or will lose the ability to manage their own affairs. In numerous instances, they also lack the capacity to appoint an attorney to act on their behalf or to set up a personal injury trust themselves. The involvement of the Court of Protection ( COP) will usually be required in such situations. The court (either the COP or the court dealing with the personal injury claim) may need to determine whether to approve the creation of a personal injury trust or the appointment of a deputy. It should be emphasised that, even where an Enduring or Lasting Power of Attorney exists, the appointed attorney(s) do not have the authority to create a trust to hold any award without the court...
This Practice Note highlights considerations when working with a litigant in person in family proceedings, spanning procedural obligations, practical guidance, and compliance with the Solicitors Regulation Authority ( SRA) Standards and Regulations, and related practice considerations for parties alike. It also summarises The Law Society’s guidance on litigants in person and identifies resources that could assist a party appearing in person. Following reforms to the scope of legal aid brought about by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ( LASPOA 2012) in 2013, the number of litigants in person involved in family proceedings has risen—see Practice Note: Eligibility for family legal aid— Availability of legal aid......
This Practice Note This Practice Note outlines the general principles to bear in mind when applying for maintenance pending suit ( MPS) under section 22 of the Matrimonial Causes Act 1973 ( MCA 1973) and Schedule 5, Part 8 to the Civil Partnership Act 2004 ( CPA 2004), also known as maintenance pending outcome of proceedings. It offers direction on the scope and mechanics of such interim support, including: quantifying maintenance pending suit, duration and backdating, pre-existing agreements and refunds of payments. Core principles include that an MPS order cannot be made before the presentation of the application or petition for an order of divorce, dissolution, nullity or (judicial) separation, and it must terminate on determination of the proceedings, in most cases the date of the final order/decree absolute. Nevertheless, the court may order ‘interim maintenance’ for the period...
Practice Note This Practice Note explains what constitutes a maintenance agreement between spouses or civil partners, embracing both a separation agreement and an arrangement without any separation provision, whether concluded while a marriage or civil partnership subsists, during its continuance, or after divorce or dissolution. It further outlines the formalities and contractual matters to address when taking instructions to draft or advise on such an agreement in practice, together with particular considerations concerning child maintenance obligations and issues. Spouses and civil partners may make an agreement covering maintenance, the division and distribution of property, and the financial arrangements for any children of the family. Any bargain reached between the parties remains, at all times, subject to the court’s overriding jurisdiction, and any term, clause, or stipulation seeking to limit the right to apply to the court for an order dealing with financial...
This Practice Note deals with maintenance agreements where one of the parties to the agreement has died. For practical guidance on varying a maintenance agreement while the parties are still alive, including applications under Schedule 1 to the Children Act 1989 ( Ch A 1989), refer to Practice Note: Variation and alteration of maintenance agreements during the lifetime of the parties, during the parties’ lifetime. See also Practice Note: Formalities of maintenance agreements. Where a maintenance agreement within the meaning of the Matrimonial Causes Act 1973 ( MCA 1973) or the Civil Partnership Act 2004 ( CPA 2004) provides for periodical payments to continue after the death of one party, and that party dies domiciled in England and Wales, the surviving party or the deceased party’s personal representatives may issue a variation application to the court. The application must be brought within six months of the grant of...
How to commence divorce proceedings on paper This Practice Note sets out the process for starting divorce cases using paper forms, and applies only to applications lodged before 4 October 2021. It identifies the parties and addresses jurisdiction, explains the steps where an earlier petition exists, and offers practical guidance on preparing a petition. This includes when to withhold the petitioner’s address, the mandatory particulars for a petition (application for a matrimonial order), and how to frame the statement of case. It also outlines the online divorce service. The Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) took effect on 6 April 2022. Any proceedings issued by the court on or after that date are governed by DDSA 2020 and the procedural amendments to the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955. For more detail, see Practice Notes:...
This Practice Note reviews the various categories of social media and points to the leading platforms in each. It further sets out how law firms can deploy these channels as marketing tools to publicise their services and reinforce their brand. Social media is now a staple marketing mechanism for many businesses across sectors. If you have yet to examine what other firms in your area, or those sharing your specialism(s), are doing on social platforms and how they use them to promote their practices, you may wish to do so. Insights from that review can inform and refine your own social media approach and priorities. It is equally essential to grasp how your target client base engages with these networks on a daily basis. To advertise in the right places, identify where prospective clients already are before investing time and budget in a social...
Practice Note This Practice Note sets out a high-level summary of the principal legislation and processes for placing looked after children with a connected person acting as a foster carer. It explains: who qualifies as a connected person; the steps for arranging a placement with a connected person; the assessment route for approving a connected person as a foster carer, including interim approval; the approach to reviewing any approval; and frequent mistakes when carrying out assessments. Please note, the material here reflects the current position in England. In Wales, this field is governed by the Social Services and Well-being ( Wales) Act 2014 and associated statutory instruments. For more detail on children’s social care in Wales, consult 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 and Local...
A list of useful website links to professional groups for family lawyers Resolution www.resolution.org.uk Family Law Bar Association www.flba.co.uk NAGALRO www.nagalro.com Association of Lawyers for Children www.alc.org.uk Children and Family Court Advisory and Support Service www.cafcass.gov.uk ......
ARCHIVED This Practice Note has been archived and is not maintained. It examines notable decisions of the Pensions Ombudsman and the courts up to 2017 concerning the Ombudsman’s jurisdiction, remedial powers and various procedural issues, together with the standards applied to ill-health retirement determinations. For additional detail on key themes from recent Pensions Ombudsman determinations—covering interpretation of scheme rules, the duties of trustees/providers, trustee/provider communications with members, employer duties, pension liberation, and the Ombudsman’s role/jurisdiction—see Practice Note: The Pensions Ombudsman—key themes from the determinations. The Pensions Ombudsman’s determinations do not amount to binding precedents, whether for the same Pensions Ombudsman or for his or her successors in office. Nonetheless, they are valuable as guidance. Traditionally, cases are cited by the complainant’s name along with the reference number assigned by the Ombudsman’s office (a letter signifies the year the complaint was received, followed by a unique...
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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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