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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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Total intestacy A total intestacy arises where none of the deceased’s estate is effectively disposed of because: no Will was made a Will was made but is invalid the Will was revoked the Will includes no disposition of the estate the Will, though valid, is ineffective, for example where the sole beneficiary died before the deceased Intestacy rules applicable on total intestacy If the deceased died intestate, Parts III and IV of the Administration of Estates Act 1925 ( AEA 1925) govern: all movable property of an intestate domiciled in England and Wales, wherever that property is located all immovable property situated in England or Wales, regardless of the deceased’s domicile The intestacy provisions apply to the residuary estate not otherwise disposed of, meaning what remains once all debts are settled and any valid legacies carried out. They operate only over...
Deputies appointed in respect of a protected party’s ( P’s) property and affairs are regularly engaged in setting up a care regime. While a property and affairs deputy does not hold the power or, in many cases, the specialist knowledge to make care and welfare decisions for P, they still have a direct role in issues relating to P’s care. According to the type and extent of P’s disabilities, the deputy may organise and fund a spectrum of care packages, from complex arrangements to modest levels of support. A round-the-clock professional nursing package delivered by a sizeable team of carers A single support worker assisting P with specific tasks for a few hours each week The terms ‘carer’ and ‘support worker’ are used throughout these notes; however, whichever service the deputy commissions, the same issues must be considered and then dealt with. The...
This Practice Note outlines how to defend divorce proceedings when the application was lodged before 6 April 2022. It details the deadlines for submitting an acknowledgement of service and an answer. It also describes the service rules and the obligations around requests for further information, disclosure and inspection. Guidance is included on case management hearings, evidential rules, and the steps leading to the final hearing. The Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) took effect on 6 April 2022. Cases issued by the court on or after 6 April 2022 are governed by DDSA 2020 and the procedural amendments in the updated Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955. For more detail, see the Practice Notes: Introduction to the Divorce, Dissolution and Separation Act 2020 and Disputed divorce, dissolution and separation proceedings (post- DDSA 2020). Matters issued by the court on or...
This Practice Note This Practice Note describes the procedure for defending nullity proceedings where the application was issued before 6 April 2022. It clarifies when an answer must be lodged, who is entitled to file it, and includes practical drafting tips. The rules on service and on applying for medical examinations are covered, as are the requirements for making requests for further information. It also sets out the stages for case management hearings and the conduct of final hearings. Key procedural steps are highlighted for practitioners. On 6 April 2022, the Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) came into force. Although DDSA 2020 did not change the substantive law on nullity, it led to consequential procedural updates under the amended Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955. These affect applications for nullity and nullity of marriage orders issued on or after 6...
Be aware that 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 fall under DDSA 2020 and the revised procedures in the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955. For more detail, see Practice Note: Introduction to the Divorce, Dissolution and Separation Act 2020. Matters issued on or before 5 April 2022 continue under the law as it stood before DDSA 2020. Such cases are unaffected by the commencement of DDSA 2020 or the associated procedural amendments. This document sets out the position for proceedings issued before 6 April 2022. As a result of DDSA 2020, amendments have been made, including to FPR 2010, Pt 7. To access historic versions of FPR 2010, Pt 7, and FPR 2010, Practice Direction 7A, as they applied to...
This Practice Note This Practice Note sets out the method for seeking a decree nisi in nullity proceedings (an application for a matrimonial order) issued before 6 April 2022, and lists the requisite court forms used. It further provides outline of how to apply to set aside a certificate of entitlement, how to rescind a decree nisi, and when a rehearing is suitable. On 6 April 2022, the Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) took effect. Although DDSA 2020 does not alter the substantive law on nullity, it introduces consequential procedural amendments within the revised Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, which impact applications for nullity and orders of nullity of marriage that are issued on or after 6 April 2022. The updates relate chiefly to changes in terminology, refreshed forms and adjustments to the...
Proceedings issued prior to 6 April 2022 The Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) took effect on 6 April 2022. While it did not change the substantive law on nullity proceedings, it prompted consequential procedural updates under the amended Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, affecting applications for nullity and nullity of marriage orders lodged on or after 6 April 2022. The revisions focus mainly on terminology, refreshed forms, and amended provisions on service. In essence, they principally concern shifts in terminology, updated forms, and revised service provisions. For guidance on the procedure in cases issued on or after 6 April 2022, see the following Practice Notes: Commencing and filing nullity proceedings (post- DDSA 2020) Standard cases—nullity proceedings (post- DDSA 2020) Disputed nullity proceedings (post- DDSA 2020) Service of...
The Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) In force from 6 April 2022, the DDSA 2020 governs cases issued on or after that date, alongside procedural reforms in the amended Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955. Proceedings issued by the court on or after 6 April 2022 are subject to its provisions and to updated procedural requirements. See Practice Note: Introduction to the Divorce, Dissolution and Separation Act 2020 for more detail. Matters lodged with the court on or before 5 April 2022 proceed under the pre- DDSA 2020 regime, whether filed through the digital system or on paper. Those applications are unaffected by commencement of the DDSA 2020 and the resulting procedural amendments. This Practice Note explains the position for proceedings started before 6 April 2022, the winding down of the regional divorce centres, and the...
This Practice Note presents a glossary of frequently used terms for matrimonial and civil partnership proceedings begun after the amendments made by the Divorce, Dissolution and Separation Act 2020 ( DDSA 2020), which took effect on 6 April 2022. DDSA 2020 revised the terminology applied to divorce, dissolution, nullity, and separation. The updated wording, for proceedings issued on or after 6 April 2022, was intended to be clearer for litigants in person and to align with the language used in civil partnership cases. For further guidance, see: Proceedings under the Divorce, Dissolution and Separation Act 2020. Divorce, dissolution and (judicial) separation matters issued by the court on or before 5 April 2022 continue under the pre‑ DDSA 2020 framework and are not affected by these reforms. For material on pre‑6 April 2022 divorces, see: Divorce (pre‑ DDSA...
This Practice Note This Practice Note examines the treatment of cryptoassets such as Bitcoin in family proceedings, together with an outline of how cryptocurrencies operate and their legal and tax treatment. It also covers how these assets are approached within such proceedings, including tracing and disclosure, valuation, expert evidence, and measures for preservation and enforcement. Cryptoassets first appeared in 2009 with the emergence of Bitcoin, yet there is no single, commonly accepted definition. Law Society guidance, produced in collaboration with Tech London Advocates and the Society for Computers & Law, points to distributed ledger technologies ( DLT) as ‘a group of technologies that use different techniques and structures to store, synchronise and maintain a shared ledger of digital records across a network of computing centres’. That guidance uses ‘cryptoassets’ to describe any asset ‘represented digitally on a DLT platform’, and also refers to the term...
This Practice Note reviews the amended 2012 Criminal Injuries Compensation Scheme, which took effect on 13 June 2019. Although the Scheme has been the subject of several consultations, no substantial changes have been made. Time periods for lodging the application From the date of the incident, a claimant has a two-year window in which to submit an application for compensation. The onus lies with the applicant to demonstrate they have not failed to meet a reasonable expectation that a claim would be pursued promptly......
This Practice Note explains the rules for trial witness statements in the Business and Property Courts, signed on or after 6 April 2021, which fall within CPR PD 57AC. Only statements signed on or after that date are within scope. It concerns the Business and Property Courts at trial stage, and related requirements only. Introduction Material in a witness statement that is not a trial witness statement, and affidavits, are outside CPR PD 57AC (see CPR PD 57AC, para 1). For a Checklist to support legal representatives preparing a trial witness statement governed by CPR PD 57AC, see: Checklist for legal representatives—trial witness statements subject to CPR PD 57AC. For help on producing a credible witness statement, see Practice Note: How to write a credible witness statement. Status of CPR PD 57AC CPR PD 57AC makes clear that, where it conflicts with another practice...
This Practice Note explains the framework governing costs under the Civil Procedure Rules 1998 ( CPR), SI 1998/3132, and when those provisions apply to proceedings handled by family lawyers. It also addresses the factors the court considers when determining costs, the kinds of costs orders that can be made, fixed costs and costs budgeting. There are several circumstances in which the CPR costs provisions will apply to proceedings undertaken by family lawyers, rather than the costs provisions of the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955. These include claims under the Trusts of Land and Appointment of Trustees Act 1996 ( TOLATA 1996), the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975) and, by incorporation, some aspects of financial remedy proceedings. See also Practice Note: Costs in family proceedings, in particular the section on...
This Practice Note sets out a practical overview of the first actions a property and affairs deputy should take once appointed... Checking and understanding the deputyship order The deputy must review the deputyship order promptly and become fully familiar with its terms so they know precisely which decisions they are authorised to make for the protected person ( P). For wider guidance on a deputy’s powers, see Practice Note: Deputyship—the deputy’s duties and powers... If any mistakes are identified, steps should be taken swiftly to correct them. Minor issues, such as a misspelt name, can usually be resolved informally with the Court of Protection... Where there are more significant errors, the deputy should file a COP9 application within the proceedings... If the court is not notified of errors within 21 days of the date the order was sent, the deputy may have to pay for a...
The position of Court of Protection Visitor is longstanding, having operated under the Mental Health Act 1983 as the ‘ Lord Chancellor’s Visitors’, and is also recognised by the Mental Capacity Act 2005 ( MCA 2005). The MCA 2005 Code of Practice explains that a Court of Protection Visitor is appointed to report to the Court of Protection on the way attorneys or deputies are performing their duties. They have been characterised as ‘the eyes and ears of the court’ and are particularly vital where there are no relatives or friends to act as a deputy or to raise issues with the court... Appointment and qualifications Court of Protection Visitors are not officers of the court, although their appointment is made by the court. Under MCA 2005, s 61, there are two categories of Court of Protection Visitor: A Special Visitor, who must be a...
The Court of Protection Rules 2017 ( COPR 2017), SI 2017/1035 The Court of Protection Rules 2017 were placed before Parliament on 30 October 2017 and took effect on 1 December 2017. They repeal the Court of Protection Rules 2007, SI 2007/1744, together with the amending rules of 2009, 2011, 2015 and 2017, and replace them with a single consolidated code... SI 2009/582 SI 2011/2753 SI 2015/548 SI 2017/187 ARCHIVED: This archived Practice Note is not maintained and is provided for background purposes only. The rules largely consolidate prior amendments made since COPR 2007, including last year’s pilot case management provisions. Procedures arising from the transparency and section 49 pilot schemes will be implemented through new practice directions... The principal alteration is a renumbering to mirror the structure of the Civil Procedure Rules 1998 ( CPR 1998), SI 1998/3132, the Family...
The principles The decision maker must first consider the principles set out in section 1 of the Mental Capacity Act 2005 ( MCA 2005), namely: the vulnerable person ( P) is to be presumed to have capacity unless it is demonstrated that P lacks it P must not be treated as unable to decide unless all practicable steps to assist P have been taken without success P is not to be regarded as incapable merely because P makes an unwise choice any act done, or decision made, under the MCA 2005 for or on behalf of a person who lacks capacity must be carried out in that person’s best interests before acting or deciding, regard must be had to whether the aim can be effectively met in a way that is less restrictive of P’s rights and freedom of...
The powers of the Court of Protection The Court of Protection is empowered to make one or more decisions about the personal welfare of a person who lacks capacity ( P) to make those decisions themselves. It can also appoint a deputy to take such decisions (see Practice Note: Choosing the deputy for further details), though health and welfare deputies are relatively seldom appointed, for the reasons articulated by Hayden J, then Vice- President of the Court of Protection, in Re Lawson, Mottram and Hopton (appointment of personal welfare deputies). For commentary on that ruling, see Case Analysis: Principles governing the appointment of personal welfare deputies ( Re Lawson; Re Mottram; Re Hopton). A recent application of the Lawson principles led to the appointment of a personal welfare deputy—see Case Analysis: Court of Protection—when is the criteria for appointing a Personal Welfare Deputy met ( Parr v...
Although the Court of Protection (the court) may issue a single order for someone who lacks capacity in a given case, that route is not invariably the most suitable on the facts. Where it is not, the court may direct that a deputy be appointed, if required, to handle the particular matter or to manage affairs on a continuing basis, as needed, especially if the incapacity is expected to persist. The court’s statutory authority to appoint a deputy arises under section 16 of the Mental Capacity Act 2005 ( MCA 2005). This Practice Note outlines the steps for making an initial application to appoint a health and welfare deputy. For guidance on applying to appoint a property and affairs deputy, which has operated an upfront notification process since January 2023, see Practice Note: Application to appoint a property and financial affairs...
For anyone appointed by the Court of Protection to serve as a deputy for property and financial affairs or for health and welfare, whether acting as a lay deputy or a professional deputy, an annual return must be submitted to the Office of the Public Guardian ( OPG). The OPG now scrutinises the way deputies report and their obligation to account for every transaction. Of note to professional deputies is the OPG’s growing collaboration and information sharing with the Senior Courts Costs Office ( SCCO), the authority that decides what a professional deputy may charge. In this Practice Note, references are made to ' P', 'the protected person' and 'the client', reflecting the terminology used within the applicable legislation or guidance. In each instance, these terms denote the person for whom the deputy has been appointed. That terminology is used...
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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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