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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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In most cases, the trust deed contains provisions for naming successor trustees (see Practice Note: Trustees—appointment of trustees), though this is not invariably so. At times, judicial involvement becomes necessary. This, however, is not universal, and exceptional situations may require the court’s supervision to secure an appointment. Appointment by the court If appointing trustees without the court’s help is found to be inexpedient, difficult, or impracticable, an application can be brought to appoint a trustee either in substitution for, or alongside, an existing office-holder. The statutory jurisdiction to appoint fresh trustees is broadly framed, and in effect permits the court to remove or discharge a trustee by naming a replacement. Ordinarily, a trustee will not be discharged unless another is appointed in their stead. In deciding, the court focuses solely on preserving the trust estate and promoting the...
Practice Note This Practice Note sets out guidance on when it is proper for the Official Solicitor to be named as litigation friend in family proceedings, together with the criteria, requirements and process for making such an appointment. It further considers funding arrangements and liability for costs. The Official Solicitor is an officer of the Supreme Court, appointed by the Lord Chancellor. The Official Solicitor’s team comprises seasoned solicitors who specialise in Court of Protection matters and in representing children and individuals who lack capacity in legal proceedings, but only where no other suitable person or agency is available to assume this role. Where an application seeks the Official Solicitor’s appointment as litigation friend, adequate security must be arranged for the costs of legal representation of the protected party, to the Official Solicitor’s satisfaction. Moreover, the Official Solicitor will be appointed solely as a...
Practice Note This Practice Note explains the process for making a parental order application under the Human Fertilisation and Embryology Act 2008 ( HFEA 2008). It gives guidance on who may apply, where an application should be issued, acknowledging service, and the steps for the first directions hearing and the final hearing. It also outlines provisions on evidence of agreement, when agreement will not be required, and the parental order register. A parental order is an order by which a child is recognised in law as the child of the applicant(s) where the child was carried by a woman who is not the applicant, or not one of the applicants, following the placement in her of an embryo, or sperm and eggs, or through her artificial insemination, and the gametes of the applicant, or at least one of the applicants, were used to create the...
Refer to our Practice Note: Pensions Ombudsman determination tracker for the key determinations by the Pensions Ombudsman we’ve covered...
This Practice Note explains the considerations and procedure relevant to the allocation of financial remedy proceedings. It addresses where proceedings should be brought, the tests applied when allocating cases to district judges, circuit judges and High Court judges, and distinguishes allocation at High Court judge level from a transfer to the High Court. It also explores allocation questions arising with freezing and search orders, claims for financial relief following an overseas divorce, requests for reallocation, and applications made in ongoing or concluded matters. Save for a few rare circumstances, financial remedy claims are issued, case managed and determined in the Family Court. The Financial Remedies Court operates as a specialist tier within the Family Court. See Practice Note: The Financial Remedies Court for details of its structure. ‘ Financial remedy’ bears the meaning given in the Family Procedure Rules 2010 ( FPR 2010), SI...
Following the establishment of the Family Court on 22 April 2014, substantial revisions were made to which types of cases are assigned to the various judicial tiers within the Family Court, and to the remedies available at each level. For a general overview of allocation and transfer, see Practice Note: The Family Court—allocation and transfer of proceedings. Specific rules apply to transfers to the High Court. Where a case needs a High Court judge, it will be heard in the Family Court by a High Court judge. Cases will not be moved to the High Court simply because they are complex. No transfer may take place unless directed by the President of the Family Division or a High Court judge. The President’s guidance dated 28 February 2018 (later revised by Sir Andrew Mc Farlane from 24 May 2021) emphasises that...
STOP PRESS: The Financial Remedies Guide 2026, issued on 13 March 2026 by Mr Justice Peel ( National Lead Judge of the Financial Remedies Court) and His Honour Judge Hess ( Deputy National Lead Judge of the Financial Remedies Court), with the approval of the President of the Family Division, now replaces and supersedes: Statement on the efficient conduct of financial remedy cases assigned to a High Court judge, whether at the Royal Courts of Justice or elsewhere (1 February 2016) (the High Court judge level efficiency statement) Statement on the efficient conduct of financial remedy hearings in the Financial Remedies Court below High Court judge level (11 January 2022) (the below High Court judge level efficiency statement) Financial Remedies Court Primary Principles (11 January 2022) Notice from the Financial Remedies Court on electronic bundles (19 April 2022) ...
Part of the deputy’s responsibility One duty of a deputy is to ensure P receives every state benefit they are entitled to. The OPG Deputy Standards, published in February 2023, set out actions a deputy should take on P’s behalf. Under Standard 4(a), a deputy must submit claims for any benefits P qualifies for within three months of the deputyship order being received. The deputy should also review P’s benefits at least once a year. The main benefits for which P is most likely to be eligible are considered in detail below. Although some state benefits are means-tested, if P’s resources stem from a personal injury damages award, and are managed by a deputy or trustees within a personal injury trust, those funds are ring-fenced and therefore cannot be counted in the assessment. Both the capital and any income produced by those funds should be...
Practice Note Please note that this Practice Note addresses the law as it presently applies in England. In Wales, the legal position is governed by the Social Services and Well-being ( Wales) Act 2014 together with its associated statutory instruments. For further reading and detail, see the Practice Note: Local authority duties to looked after children in Wales. This Note aims to support practitioners in understanding local authority obligations towards children and young people who may qualify for advice and assistance, i.e. relevant children. The material will be of use to practitioners who: act on behalf of local authorities represent parents or guardians in care proceedings involving a child aged 16 or 17 advise looked after young people about the duties owed to them by the local authority advise on, or prepare for, judicial review of a local authority for failing to fulfil their duties under the...
This Practice Note outlines the overarching principles guiding the court in adoption cases, including the paramountcy principle and the effect of delay on timely decision-making. It also addresses how the welfare checklist is applied, the spectrum of powers available, and the requirement that no order be made unless doing so is better for the child. The core principles governing adoption are found in section 1 of the Adoption and Children Act 2002 ( ACA 2002). Those provisions apply, in differing ways, to the court, an adoption agency, or both. A local authority with responsibility for children’s services is an adoption agency and, when operating in that role, acts in that capacity, which differs from exercising its powers and duties under the Children Act 1989 ( Ch A 1989) in such proceedings......
This Practice Note outlines the overarching approach to contact orders before and after adoption, setting out the general principles to be applied. It explains who can seek a contact order within adoption proceedings, the procedure to be followed, and provides guidance on the duration, alteration and suspension of contact orders in adoption, as well as discharge considerations and associated practice issues. Planning for adoption and contact Contact must be explicitly addressed in the social worker’s permanence report and also by the agency decision-maker at approval. In uncommon instances where the adoption panel decides whether children should be placed for adoption, and in every case involving matches between children and prospective adopters, the panel must consider contact matters too. There is no assumption either way about contact once the adoption agency is authorised to place the child for...
Solicitors must consider the mental capacity of their clients in everything they do The assessment of capacity arises when: there is doubt whether an individual can decide, covering matters from marriage to consenting to or declining medical treatment to making a Will capacity might influence a proposed transaction and those directly or indirectly affected it is necessary to think about third-party participation in decision-making Every person has the right to choose, even if others see that choice as mistaken or unconventional. Generally, there is no need to intrude upon that process. Yet, while upholding personal autonomy, English law has long accepted that some people lack the mental capacity to bear responsibility for their choices. Traditionally, capacity law was drawn from various judicial authorities and legislation, including the Enduring Powers of Attorney Act 1985 and the Mental Health Act 1983......
Practice Note This Practice Note summarises the Domestic Abuse Act 2021 ( DAA 2021) and introduces its principal provisions. It addresses the statutory definition of domestic abuse, special measures relating to evidence and participation in proceedings, restrictions on the cross-examination of victims of abuse, and the framework for domestic abuse protection orders ( DAPOs) and domestic abuse protection notices ( DAPNs). It also outlines the pilot scheme under FPR 2010, PD 36ZG for DAPOs and DAPNs, and provides information on commencement dates. DAA 2021 received Royal Assent on 29 April 2021 and is being implemented in stages. The Act effects wide-ranging reforms to the law on domestic abuse, including establishing a definition of domestic abuse, special measures for evidence and participation, limits on cross-examination of victims, and the orders a court may make. DAA 2021 does not repeal Part IV of the Family Law Act 1996 ( FLA...
Time limits for bringing a judicial review claim On receipt of a judicial review claim form, a public body should first carefully assess whether it has in fact been brought within time. For more detailed guidance, see Practice Note: Judicial review—time limits and the pre-action protocol. Different time limits apply for particular categories of judicial review claim: Challenges to an Upper Tribunal decision must be filed within 16 days of the Tribunal’s decision notice being sent Public procurement claims must be issued within 30 days of when a claimant knew, or ought to have known, of the alleged breach of the public procurement rules The Administrative Court Judicial Review Guide, para 6.4.3.3, states: ‘ Where the claim concerns a decision under [ PA 2023], it must be commenced within the period specified by [ PA 2023, s 106]: 30 days from the date when the claimant first knew or ought to...
General rule on costs in judicial review The default position on costs in judicial review, as in other litigation, is that costs follow the event. That said, parties may apply for pre-emptive costs orders. The costs of, and incidental to, all proceedings in the High Court are within the court’s discretion. By statute, the High Court has discretion to award costs on a judicial review application. Taking into account every relevant circumstance, including the overriding objective, the court may make a costs decision that departs from the default rule. The scope of the court’s discretion includes: whether one party must pay another’s costs the quantum of those costs the timing of payment Ordinarily, costs follow the event unless, on the particular facts, the court considers that a different order on costs, such as a pre-emptive costs order, should be made, for example to enable the claimant to continue the case. An...
What is judicial review? Judicial review is the means by which the courts exercise a supervisory jurisdiction over the performance of public functions by public bodies. This supervisory jurisdiction should not be mistaken for, or treated as, a right of appeal. CPR 54.1 states that a 'claim for judicial review' means a claim to assess the lawfulness of: an enactment a decision, action, or failure to act in relation to the exercise of a public function. Proceedings usually take place in the Administrative Court, which forms part of the King's Bench Division of the High Court. Judicial review proceedings are governed by a number of Civil Procedure Rules, Practice Directions and a pre-action protocol. Further detailed and practical guidance is provided in the Administrative Court Judicial Review Guide. The guide is intended to assist parties pursuing judicial review claims in the...
Practice Note This Practice Note outlines the principles governing costs in children proceedings, across private and public cases alike, and identifies the restricted circumstances in which a costs order might be made. Generally, it is rare indeed for the court to impose a costs order in children proceedings; however, these proceedings still fall under the overarching rule that the court may, at any time, make such order as to costs as it considers just in the circumstances......
Certainty In order for a settlor to establish a private express trust, the three certainties must be present. These are: certainty of words — known as certainty as to the settlor’s intention to create a trust, with the trust property intended to be kept separate from the trustee’s other property certainty of subject matter — known as certainty as to the property to which the trust is to attach certainty of objects — known as certainty as to the persons or ‘objects’ who are intended to benefit Charitable purpose trusts differ from express trusts for the benefit of persons in relation to the three certainties only, in that they do not need to satisfy the certainty of objects, so long as there is a general charitable intention. Certainty of intention of the settlor to create a trust The requirement of intention is met where there is sufficient evidence showing that the...
This Practice Note This Practice Note sets out the factors the court must take into account when considering an application for a non-molestation order under Part IV of the Family Law Act 1996 ( FLA 1996). It outlines who may seek a non-molestation order and identifies who qualifies as associated persons for the purposes of FLA 1996, Pt IV. It also addresses what is meant by molestation Under the Family Law Act 1996 ( FLA 1996), a non-molestation order is an injunction restraining a person (the respondent) from molesting another individual who is associated with the respondent, or a relevant child The court may make a non-molestation order: where an application has been brought (either within other family proceedings or without any other family proceedings being issued) by a person associated with the respondent; or in any family proceedings to which the respondent is a party, if the court...
To compel compliance with an order directing the handover or transfer of identified goods, a writ of delivery ( High Court) or a warrant of delivery ( Family Court or County Court) can be utilised for enforcement. A writ of delivery is addressed to a High Court enforcement officer; a warrant of delivery is issued to a County Court bailiff. If a party holds a judgment or order requiring delivery of goods and the respondent has not complied, enforcement may proceed by writ or warrant of delivery pursuant to the Civil Procedure Rules 1998 ( CPR), SI 1998/3132, r 83.14 ( High Court) or CPR 83.23–83.25 ( Family Court) (as applied by the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, 33.1(2)), save where (for the Family Court) another rule or Act provides otherwise. Such a writ or warrant empowers the...
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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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