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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:
Most recent Practice notes
Practice Note This Practice Note outlines when the court may direct the sale of property in proceedings under the Matrimonial Causes Act 1973 ( MCA 1973) or the Civil Partnership Act 2004 ( CPA 2004), together with practical points when pursuing a sale. It also describes the limited avenues for seeking an interim order for sale, and the steps to take where one party does not execute a conveyance, together with the procedure to follow. By virtue of MCA 1973, s 24A (and the Civil Partnership Act 2004 equivalent), the court may order the sale of property—real or personal, eg a car ( Joy v Joy- Morancho ( No 2))—provided it is accompanied by one of the following: a legal services payment order a lump sum order a property adjustment order a secured periodical payments order An order for sale can be made at the same time as the...
Mc Kenzie friends in family proceedings This Practice Note sets out advice on Mc Kenzie friends within family cases, also detailing the steps to follow when a party wishes to be assisted by a Mc Kenzie friend, together with the limits on what a Mc Kenzie friend can and cannot do. It also reviews requests for a Mc Kenzie friend to be granted rights of audience or permission to conduct proceedings. The principal guidance about Mc Kenzie friends was published on 12 July 2010 by the President of the Family Division, jointly with the Master of the Rolls (the Mc Kenzie friends guidance). That document superseded the earlier President’s guidance dated 14 October 2008 and drew together much of the direction contained in previous authorities. In addition, guidance issued by the Bar Council, the Chartered Institute of Legal Executives ( CILEx) and the Law...
Practice Note This Practice Note explains the process for adding a third party to financial proceedings under the Family Procedure Rules 2010 ( FPR 2010). It sets out when a third party might appropriately be joined by the court of its own motion, on the application of an existing litigant, or following an application by the third party itself, and identifies where responsibility for bringing any joinder application may rest. It also reviews judicial guidance on joining parties and highlights particular situations in which joinder can arise, including matters concerning trusts, business assets, or providers of litigation funding. It addresses when and by whom such steps should occur......
Engaging counsel to represent a client calls for careful, considered planning and thorough preparation. Counsel’s function is to deliver impartial, objective guidance and to exercise the craft of advocacy for the client. While they work within the wider team, they also reinforce and augment the advice first given by the instructed solicitor, adding a valuable independent perspective throughout the matter. This Practice Note explains how to brief counsel so the client secures the greatest possible advantage from their involvement... Choosing counsel and reasons to instruct Keep a curated and frequently updated list of approved counsel at hand. In family work, what is often described as a strong ‘bedside manner’ is especially significant. Clients may feel extremely vulnerable, and the presence of a dazzling yet curt professional could be entirely unsuitable for that client. You may need to consider instructing leading counsel; in some cases, leading...
Practice Note This Practice Note sets out the requirements for applying for an order to obtain information from a judgment debtor—formerly termed an ‘oral examination’—including the criteria for making such an order, the procedure, hearing arrangements, and the steps available if the debtor does not comply. This order assists enforcement rather than constituting an enforcement method. For practitioners contemplating enforcement, a recurring difficulty is limited knowledge of the respondent’s (debtor’s) income or assets. One option is to seek an order compelling the debtor to be questioned about their income, assets and liabilities. The previous expression ‘oral examination’ has been replaced by applications for orders to obtain information from judgment debtors (known as ‘information hearings’), following the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, 33.23, which imported the Civil Procedure Rules 1998 ( CPR), SI 1998/3132, Pt 71 into family...
Sharing parental responsibility More than one person may hold parental responsibility for a child at the same time. One parent’s responsibility does not end merely because another person gains it. If those sharing responsibility cannot agree on how it should be exercised, the matter may need court resolution via an application for a specific issue order or a prohibited steps order. See Practice Notes: Specific issue orders and Prohibited steps orders. The right of independent action When responsibility is shared, each holder may generally act independently, without the others, unless an enactment requires consent for a matter affecting the child. This ability to act alone is limited where any step would conflict with an order concerning the child under the Children Act 1989 ( Ch A 1989). Wardship likewise constrains the exercise of parental responsibility......
Practice Note This Practice Note describes the procedure for appointing or removing a guardian for a child. It identifies who will be respondents to the application, as well as any other persons who must receive notice of the proceedings. It also details the required application form and the rules on service. Any individual may apply to the Family Court to be named as a child's guardian. No permission is needed to issue the application. The court can, in any family proceedings, make an order appointing a person as a child's guardian even where no guardianship application has been made, if it considers such an order appropriate. This remains the case even if no one has applied for guardianship. This may lead to someone other than the applicant being appointed as the child's guardian. A child arrangements order ( CAO) naming the applicant as the person with whom the...
This Practice Note This Practice Note explains the narrow circumstances in which the court may pause proceedings (whether or not there are concurrent proceedings in another jurisdiction) by exercising its inherent jurisdiction. It also outlines the relatively unusual situations in which the court may grant an anti-suit or Hemain injunction. The Brexit transition/implementation period concluded at 11pm on 31 December 2020, known in UK law as ‘ IP completion day’. For practical guidance on the implications of Brexit, see Practice Note: Family proceedings with EU connections—toolkit. The court has an independent role and responsibility to assess and determine whether it has jurisdiction. A party may seek a stay under the inherent jurisdiction by relying on the principle of forum non conveniens. This power pre-dates the Domicile and Matrimonial Proceedings Act 1973 ( DMPA 1973). The court exercises this jurisdiction with restraint, and its...
Practice Note This Practice Note reviews the conduct of contempt proceedings under Part 37 of the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955—often called committal proceedings—covering the standard of proof to be applied to a contempt application, together with practical information about hearings and the treatment of evidence. It also outlines the range of powers the court may exercise in connection with contempt arising within family proceedings. In addition, it addresses what is to occur if the defendant fails to attend the hearing, the defendant’s right to remain silent, and the defendant’s eligibility for legal aid, legal representation and/or an interpreter. For guidance on the preliminary steps for an application for contempt under FPR 2010, SI 2010/2955—including the formalities that must be satisfied before issue, such as (where relevant) the requirement for a penal notice on the order said to have been...
Adducing expert evidence in private law children proceedings This Practice Note addresses the presentation of expert evidence in private law children cases, setting out the statutory framework (in particular Part 25 of the Family Procedure Rules 2010 ( FPR 2010) and the associated Practice Directions) and also clarifying who qualifies as an expert. It further explores when such evidence is required, the process for seeking permission and the considerations the court must weigh when deciding that application, together with the commissioning of experts, including use of a single joint expert ( SJE), and the arrangements for paying the expert’s fees. It also outlines experts’ obligations and the expectation that they attend court. In addition, it explains the need for any expert in children proceedings to satisfy the relevant national standards for experts. For hands-on guidance on evidence in private law children cases, see...
This Practice Note sets out a concise overview of the rules governing witness and expert evidence in Court of Protection ( Co P) proceedings. It cross-refers to Parts 14 and 15 of the Court of Protection Rules 2017 ( COPR 2017), as well as to Practice Direction 14A: Written evidence ( PD 14A) and Practice Direction 15A: Expert evidence ( PD 15A) to the COPR. Witness evidence Under COPR 2017, r 14.3(1), the default position is that any fact requiring proof through a witness must be established: at a final hearing, by the witness’s oral testimony, or at any other hearing, or where there is no hearing, by the witness’s written evidence. When a witness is called to give oral evidence at a final hearing, their witness statement will stand as their evidence in chief unless the court orders...
This Practice Note outlines the first matters to weigh up when seeking to enforce a financial order made in family proceedings, setting out the governing rules for each available enforcement route. It further offers direction on orders that can be sought where a party is in contempt, for example a Hadkinson order, and addresses when interest might accrue on a financial order. General principles You may need to enforce all or part of an order arising in financial proceedings; attention must be paid to any leave requirements and limitation periods, see Practice Note: Limitations on enforcement. If a court order partly comprises a recital recording an agreement that imposes an obligation on a party, and partly contains operative terms, the recital can be enforced if the court would have had power to make an order in equivalent terms ( H v H (...
This Practice Note outlines how Duxbury calculations are constructed and applied in practice to the assessment and calculation of capitalised spousal or civil partner maintenance/periodical payments within financial remedy proceedings, setting out the underlying assumptions, the limitations, and the circumstances in which such calculations are suitable and practically appropriate. It also reviews the courts’ general approach to rates of return. The basis of Duxbury calculations A Duxbury calculation was originally conceived to determine, in substance, the capital sum required to fund a fixed-rate periodical payment for the remainder of the recipient’s life, that is, their actuarial life expectancy as projected. In November 2024, the Duxbury Working Group, which is self-selected, published its final report (following a provisional report in October 2024) addressing earlier criticisms and advancing proposals ‘to banish outdated concepts and generally to modernise the approach’, while confirming that ‘it will be a matter for the...
Practice Note This Practice Note examines how domicile is identified and its various forms—origin, choice, and dependence—within family proceedings, setting out how the court approaches domicile and the consequences for a case. It also addresses how habitual residence is assessed, including for a child, with reference to pertinent authorities. The effects of Brexit, including transitional measures, are considered. At 11pm ( GMT) on 31 December 2020, the Brexit transition/implementation period concluded following the UK’s exit from the EU. From that moment (termed in UK law as ‘ IP completion day’), core transitional rules ceased and notable alterations took place across the UK’s legal framework. These changes affect advisers evaluating which court has jurisdiction to hear a dispute. For direction, see Practice Note: Family proceedings with EU connections—toolkit. It is important to distinguish domicile from habitual...
Practice Note This Practice Note explains the procedure for seeking a declaration of parentage under the Family Law Act 1986 ( FLA 1986). It covers issuing and serving the application, evidential requirements, directions and case management. It also addresses declarations concerning adopted children, the legal impact of a declaration, and post-declaration steps to re-register a birth. Scientific testing, including DNA tests, is considered... The process for an application for a declaration of parentage is governed by the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, Pt 8 together with FPR 2010, PD 8B. Although the declaration is sought under Pt 8, applications are brought using the alternative procedure in FPR 2010, SI 2010/2955, Pt 19—see Practice Note: FPR 2010, Part 19—alternative procedure for applications. The application must be made on Form C63 ( Application for declaration of parentage under FLA 1986, s 55A), and a court fee is...
This Practice Note explains when a litigation friend, an accredited legal representative ( ALR), or another representative (collectively known as Rule 1.2 representatives) is required in Court of Protection proceedings, and sets out who may act as a litigation friend or as a Rule 1.2 representative. It also details the respective rules governing the appointment and removal of litigation friends and Rule 1.2 representatives in the Court of Protection. Throughout, it refers to the relevant provisions of the Court of Protection Rules 2017 ( COPR 2017) and to the Court of Protection Practice Direction 17A— Litigation friend ( PD 17A) and Practice Direction 17B— Rule 1.2 representatives ( PD 17B). For proceedings in the county court and High Court, reference should be made to the Civil Procedure Rules 1998, Pt 21— Children and Protected...
This Practice Note explains the threshold criteria contained in section 31(2) of the Children Act 1989 ( Ch A 1989) and identifies the public children law applications within its scope. It outlines the statutory definition of those criteria under the Ch A 1989 and the need for evidence of significant harm. It further considers standards of proof, situations where the perpetrator is unknown, and the court’s responsibilities and duties, including how findings are to be formally recorded......
Practice Note This Practice Note offers direction on costs assessment in family proceedings, covering both summary and detailed assessments. It reviews assessment on the standard basis and the indemnity basis in private proceedings, publicly funded costs, who has authority to assess and when, and the procedure for addressing points of dispute and for obtaining default costs certificates. Its emphasis is principally inter partes costs. For further practical guidance on solicitor and own client costs, see Practice Note: Client care—family law — Costs......
Conflicts of interest can present significant and serious problems for solicitors and law firms, affecting both compliance obligations and client relationships alike in practice. If a conflict arises, or there is a risk that one might arise, it is vital to: maintain robust systems and effective controls that enable the prompt identification of any conflict carefully assess whether you can act, or continue to act, for the client(s) concerned determine what appropriate safeguards are required to manage and mitigate the conflict Solicitors Regulation Authority ( SRA) regulatory regime The principal requirements within the SRA Standards and Regulations include the following SRA components: Principles Code of Conduct for Solicitors, registered European lawyers ( RELs), registered foreign lawyers ( RFLs) and registered Swiss lawyers ( RSLs) Code of Conduct for Firms Accounts Rules Glossary For further information on the SRA Standards and Regulations, see Practice Note: The Solicitors Regulation Authority ( SRA) regime for family...
This Practice Note outlines fact-finding (also called split) hearings in private children cases. It identifies the considerations in the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, and in FPR 2010, PD 12J, which guide the court when deciding if a split hearing is necessary where domestic abuse is alleged, and the issues to be addressed if a fact-finding hearing is required. It describes the court’s role at such a hearing and the approach taken when deciding whether an allegation is proved. Fact-finding hearings, or split trials, are scheduled within private law children proceedings so that oral evidence can be heard on disputed matters bearing on the child’s welfare. In reaching conclusions on the allegations, the court applies the balance of probabilities. When will a fact-finding hearing take place? A fact-finding hearing is not warranted in every private law children case. Before the court lists one, there must...
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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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