Featured documents
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
When P’s personal injury or clinical negligence claim settles, or an interim payment is received, the deputy must decide how to invest the compensation most effectively and prudently. Standard 4(d) in the updated Deputy Standards Policy, issued by the Office of the Public Guardian ( OPG) in February 2023, also requires property and financial affairs deputies in this role to pursue the best attainable return on savings with minimal risk, wherever reasonably possible, and to optimise the management of P’s estate using appropriate, cost‑effective measures at all times. Further detail for professional deputies on Standard 4(d) appears in the Deputy Standards— Guidance for Professional Deputies, also published by the OPG in February 2023. Following the judgment in Re ACC, a professional deputy should take care to avoid any potential conflict of interest if proposing to appoint an associated company to manage P’s...
This Practice Note covers two forms of court procedure that arise in deprivation of liberty cases: applications brought where the legality and validity of a person’s detention under the deprivation of liberty authorisation process is called into doubt or dispute applications that a public authority may issue seeking authorisation to deprive a person of liberty beyond the ambit and outside the scope of the regime set out in Schedule A1 to the Mental Capacity Act 2005 ( MCA 2005) Both categories of procedure lie outside allocation to case pathways, as each is governed by their own distinct procedural requirements and rules. Note: at the time this note was prepared, the Court of Protection is reviewing the route for obtaining judicial authorisation of deprivation of liberty......
Introduction The authority of the Court of Protection (the court) derives from the Mental Capacity Act 2005 ( MCA 2005), and the way in which that authority is exercised is directed by the Court of Protection rules, alongside related practice directions. MCA 2005 broadened the court’s remit and, from 1 October 2007, it may determine issues about an individual’s personal welfare and health care, in addition to continuing to address that person’s property and financial affairs as before. The court will usually not intervene unless there is a dispute, or an inability to reach a decision on a particular matter, because in most situations an appointed deputy will be present to make the decision that is required. Nevertheless, even where a deputy has been appointed, there will be occasions when their position needs clarification or when some further practical assistance is sought......
Use the link below to obtain the training presentation. Contents Overview of the Court of Protection and the landscape prior to the Mental Capacity Act 2005 Relevant statutes and procedural rules Primary role of the Court of Protection Principal powers exercised by the Court of Protection Decisions concerning property and financial matters Decisions relating to health and welfare Guiding principles underpinning Court of Protection decisions Responsibilities and authorities of deputies Support services......
The Court of Protection Rules 2017 ( COPR 2017) carry an overriding aim of enabling the court to determine cases fairly and at proportionate cost, reflecting the principles within the Mental Capacity Act 2005 ( MCA 2005). Under COPR 2017, r 1.3, the Court of Protection has a duty to manage cases actively by, among other matters: considering the most suitable case pathway for the proceedings; and ensuring allocation to an appropriately levelled judge (or authorised court officer) and, so far as possible, preserving judicial continuity Allocation to case pathways COPR 2017, r 3.9 provides for assigning cases to case management pathways. There are three such pathways: the personal welfare pathway the property and affairs pathway the mixed welfare and property pathway Each case should be placed on one of the above pathways on issue unless it falls within these...
New Practice Direction/ Rules Fresh Practice Directions and, in certain instances, substitutions to the Court of Protection Rules 2007 came into force on 1 July 2015. Following the Court of Protection ( Amendment) Rules 2015, the Court of Protection forms were amended and a suite of new forms was also brought in from 1 July 2015... Practice Direction 2A— Participation of P Effective from 1 July 2015, this Practice Direction aims to secure P’s meaningful involvement in proceedings and to ensure the court is fully apprised of P’s circumstances, whilst avoiding undue delay and unnecessary expense. It references a new Rule 3A, also operative from 1 July 2015, which requires the court to consider whether to issue directions: for P to be joined as a party or for P to be represented by an accredited legal...
This Practice Note outlines the court’s case management powers under the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, Pt 4, such as altering the time for compliance by the parties (by extending or accelerating deadlines), adjourning hearings, requiring attendance at court, and ordering a separate hearing of any issue. It explains how the court must advance the overriding objective through active case management ( FPR 2010, SI 2010/2955, 1.4) and what it takes into account when using these powers. This covers orders made on the court’s own initiative, sanctions for non-compliance and relief from sanctions, provision for vulnerable parties, civil restraint orders, and the power to rectify any procedural error. In summary, the key case management powers of the court are: The overriding objective FPR 2010, SI 2010/2955, Pt 1 sets out the overriding objective. Its aim is to enable the court to deal with...
Presumption of continued parental involvement The presumption of continued parental involvement obliges the court, when deciding the following, to start from the position that a child’s welfare is promoted by the participation of each parent in the child’s life, unless shown that such involvement would not in fact serve the child’s welfare: contested applications for orders under Ch A 1989, s 8 contested applications to vary or discharge those orders granting or removing parental responsibility in favour of a parent other than the mother See Practice Note: Welfare of the child—presumption of continued parental involvement. Transitional provisions state that the presumption does not apply to family proceedings begun but not concluded before 22 October 2014. Note that the Ministry of Justice ( Mo J) has announced its intention to repeal the presumption of parental involvement from sections 1(2A), (2B) and (6) of the...
This Practice Note sets out guidance on costs principles and the relevant case law that apply in public law children matters, such as care proceedings and adoption. It explains how the courts approach costs orders against parties, including local authorities, and addresses fact-finding hearings and situations involving an intervener. It also outlines the position on costs and the Legal Aid Agency ( LAA) statutory charge where a claim for damages is pursued under the Human Rights Act 1998 ( HRA 1998). General principles In children proceedings, the usual rule that costs follow the event does not operate; this is pursuant to the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, 28.2(1), which disapplies CPR 44.2(2)......
This Practice Note sets out guidance on the rules that govern costs in family proceedings, addressing the application of the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, together with the Civil Procedure Rules 1998 ( CPR), SI 1998/3132, and the factors the court considers when determining costs, including conduct and offers of settlement. It further examines costs on divorce or dissolution (both before and after the coming into force of the Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) on 6 April 2022), the categories of costs orders available to the court, costs concerning litigants in person, and costs orders made against non-parties. General principles The principal costs provisions are contained in FPR 2010, SI 2010/2955, Pt 28, supplemented by FPR 2010, PD 28A. Certain elements of the CPR costs regime also apply to family proceedings, subject to...
This Practice Note summarises the rules governing costs in financial remedy proceedings arising from divorce or civil partnership cases under the Family Procedure Rules 2010 ( FPR 2010), and in financial proceedings that proceed under the Civil Procedure Rules 1998 ( CPR), setting out how the relevant provisions apply in practice. General provisions The court retains an ongoing discretion to make such costs orders as it considers just at any time. By FPR 2010, SI 2010/2955, 28.2(1), CPR 44 (excluding CPR 44.2(2)–44.2(3) and CPR 44.10(2)–44.10(3)), together with CPR 45.8, 46 and 47, and the associated practice directions, apply to costs in family proceedings, albeit with certain modifications......
Archived Practice Note This Practice Note has been archived and is no longer maintained. It outlines key updates and guidance concerning coronavirus ( COVID-19) relevant to family proceedings, drawing on directions from the President of the Family Division and other members of the judiciary. It also reviews case law and consultations about remote hearings. The World Health Organisation declared the coronavirus emergency over on 5 May 2023 and there are currently no coronavirus-related restrictions in force in the UK. During the emergency, judges could authorise remote hearings where appropriate, and guidance for the Family Court was issued, including: President of the Family Division’s guidance The Remote Access Family Court guidance Mediation Information and Assessment Meetings could likewise be conducted remotely. Online mediation remains available, subject to the approach of the particular provider involved. For general guidance on remote and/or hybrid hearings, see...
Children in care Children in care sit within a sub-category of the broader group of ‘looked after’ children. The parallel sub-category consists of children accommodated under most of the other social services functions operated by the local authority. A child is regarded as being in the care of a local authority when subject to a care order, and this extends to a child under an interim care order. In England, there are three sets of children who, although accommodated under social services functions in the Children Act 1989 ( Ch A 1989), are not classed as looked after. These are children accommodated under: the general duty on local authorities to provide services to children in need, their families and others under Ch A 1989, s 17 the duties towards children who have left care, including pathway plans, under Ch A 1989, s 23B the...
STOP PRESS: This document is currently being revised to take account of the Data ( Use and Access) Act 2025 ( DUAA 2025), which updates the UK GDPR and the Data Protection Act 2018. For further detail on DUAA 2025 compliance, see Practice Note: Data ( Use and Access) Act 2025—compliance implications. This Practice Note draws on the UK General Data Protection Regulation ( UK GDPR) and the consent guidance issued by the Information Commissioner’s Office ( ICO). Under the UK GDPR, consent is rarely the default lawful basis for handling personal data, and organisations should assess whether another lawful ground is more suitable from both legal and operational viewpoints—see below: Do you need consent? and Practice Note: How to process personal data lawfully. What is consent? Consent means a freely given, specific, informed and unambiguous expression of the data subject’s wishes, whereby they indicate...
This Practice Note outlines how the courts approach matters where the welfare of two children with opposing interests is tightly interwoven together, including scenarios involving child-parents and siblings. It also offers guidance for situations in which a parent’s interests conflict with those of the child, addressing applications and orders made concerning siblings and parents specifically. The welfare of more than one child When a court considers any question relating to: the child’s upbringing, or the management of the child’s property, or the use of any income generated from it the child’s welfare is the court’s paramount concern, unless a statute expressly or by implication provides otherwise. Where the welfare of two children with clashing interests is inextricably connected, the court must decide whether the welfare principle is to prevail for one child, the other, or neither. This issue can arise where an application is made by a child, or where...
Client guides Client guides comprise template letters covering a broad spectrum of family law matters, suitable for sending directly by the family practitioner to the client. Each guide also features drafting commentary for practitioners and hyperlinks to relevant connected materials, such as Practice Notes, forms, authorities, precedents and legislation. For procedural guides offering step-by-step direction on, inter alia, domestic abuse, asset preservation, relationship breakdown, cohabitants, private children, financial provision, international cases and enforcement, refer to Practice Note: Family procedural guides......
This Practice Note outlines the key aspects of the collaborative process, the factors to consider when assessing its suitability, the responsibilities of collaborative solicitors, and the steps to follow at each stage of the process. Features Within the collaborative framework, each party appoints a collaborative lawyer and enters into a collaborative participation agreement. There are no adversarial court proceedings. The parties also sign a disqualification clause confirming that, if agreement cannot be reached and proceedings are issued, they will cease to use their current lawyers and instruct new representatives. the collaborative agreement records a promise to negotiate in good faith, with openness and transparency matters are typically addressed in face-to-face “four-way” meetings attended by both parties and their solicitors correspondence is ordinarily kept to a minimum The collaborative process is a holistic approach in which the parties and their lawyers may involve other...
Practice Note This Practice Note outlines the differing statutory meanings of cohabitation, for both same- and different-sex partners, alongside the Law Commission’s proposals on cohabitation and draft laws concerning cohabitants’ rights. It covers definitions applicable to relationships between same and different-sex couples as found in statute, and summarises legislative bills dealing with the rights of cohabitants. It also reviews calls to reform cohabitation law. Legislation employs multiple formulations for what constitutes cohabitation. Moreover, the Law Commission’s July 2007 report, Cohabitation—the financial consequences of relationship breakdown, suggested additional criteria to define cohabitation for intended legislation, which the government did not progress. The government has since confirmed an intention to consult on reform by spring 2026. See Practice Note: Case law definitions of cohabitation......
This Practice Note outlines guidance on clauses that may appear in a cohabitation contract or agreement, covering financial provision, property interests, arrangements for children and variation, and highlights terms that are likely to be unenforceable. When preparing a cohabitation contract, the usual contractual requirements should be observed. Depending on the nature of the parties’ assets, they should also consider entering a deed of trust at the same time—see Practice Note: General principles—cohabitation contracts. A Precedent letter for clients contemplating a cohabitation contract/agreement is available: Cohabitation agreements—client guide. See also Precedent: Cohabitation contract. Terms Although cohabitation contracts can be wide-ranging, provisions such as stipulating how much time the couple must spend together are unlikely to be enforceable (see Balfour v Balfour). Agreements drawn up overseas may reflect different priorities, yet the same enforceability issues will arise if a dispute is heard in this...
Cohabiting partners typically do not enjoy the same rights as a spouse or civil partner when their partner dies, regardless of relationship length or whether the couple are same- or opposite-sex. This Practice Note highlights how a cohabitant’s entitlements on a partner’s death differ from those of a spouse or civil partner in relation to tenancies, tax, intestacy, pensions, bereavement benefits and fatal accidents. See also Practice Notes: Family provision claims—the cohabitant and Family provision claims—practice and procedure. Tenancies A cohabitant, spouse or civil partner is equally able to succeed to: a protected agricultural occupancy under the Rent ( Agriculture) Act 1976 a regulated tenancy under the Rent Act 1977 an assured tenancy under the Housing Act 1988 a secure tenancy under the Housing Act 1985, which may carry conditions for pre-1 April 2012 tenancies See also Practice Note: Occupation of the family...
Popular documents
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 ]...
Discover more from LexisNexis
