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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
This practice note reviews the amended 2012 Criminal Injuries Compensation Scheme, which took effect on 13 June 2019. The amended 2012 Criminal Injuries Compensation Scheme While a person harmed by crime may pursue a civil action for personal injury damages against the assailant, such proceedings are only truly practical if the intended defendant can satisfy any judgment. This is because enforcement depends on the defendant’s ability to meet any award in full, if at all. A civil route might also be viable where an employer could be vicariously liable, or a public authority might bear responsibility. A victim of a violent offence can, alternatively, seek an award through the Criminal Injuries Compensation Scheme. Various criminal injuries compensation schemes have been established to compensate those who have suffered injury. The latest and operative scheme is the amended 2012 scheme, implemented on 13 June 2019. Its...
This Practice Note outlines the enforcement routes available for implementing an order made under section 14 of the Trusts of Land and Appointment of Trustees Act 1996 ( TOLATA 1996). It describes the steps required after an order for sale where a party refuses to execute a conveyance, sets out the procedural path to be followed, and explains the approach on an application to commit for contempt of court. Section 14 TOLATA 1996 empowers the court to declare the nature and scope of an individual’s interest in property held on a trust of land and/or to direct a sale of that property. Either a trustee or a beneficiary of the property is entitled to bring such proceedings. See Practice Note: Eligibility to apply under TOLATA 1996. Order for sale TOLATA 1996, s 14 grants the court a discretion to make such orders as it...
Practice Note This Practice Note outlines the evidential material required for an application under the Hague Convention on the Civil International Aspects of Child Abduction 1980 (the 1980 Hague Convention), and explains the possible directions the court may give, together with the practice and procedure for both without notice applications and applications on notice. Its main focus is proceedings under the 1980 Hague Convention, but it also offers guidance on wider international child abduction proceedings, including those under the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Hague Convention). It further sets out the requirements for withdrawing an application, striking out or summary dismissal, and for variation and setting aside. See also Practice Notes: Child...
This Practice Note sets out the grounds on which a marriage is void This Practice Note explains when a marriage will be treated as void. It includes unions that are not valid under the Marriage Acts 1949 to 1986, e.g. where the parties are within the prohibited decrees. It also covers situations in which, at the date of the ceremony, one party was already lawfully married, or where the union is polygamous and was contracted outside England and Wales. On 6 April 2022, the Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) took effect. While DDSA 2020 reformed the law for divorce, dissolution and judicial separation proceedings, it made no substantive alteration to the law on nullity. Accordingly, the grounds on which a marriage or civil partnership can be void or voidable remain unchanged. There are, however, consequential procedural amendments in the updated Family...
This Practice Note This Practice Note explains when a maintenance agreement between spouses or civil partners can be changed during the parties’ lifetimes, whether by mutual consent or by order of the court under the Matrimonial Causes Act 1973 ( MCA 1973) or the Civil Partnership Act 2004 ( CPA 2004), and identifies the relevant factors. It addresses required procedure and pertinent case law. It also examines the court’s authority to revise a child-related maintenance agreement under Schedule 1 to the Children Act 1989 ( Ch A 1989). The parties may amend the terms of a maintenance agreement by consent at any time, ideally recorded in writing. See Practice Note: Formalities of maintenance agreements for what amounts to a maintenance agreement and associated contractual considerations. Further, the court may vary a maintenance agreement between spouses or civil...
This Practice Note outlines how pension rights can be valued and the factors to be taken into account in the context of family proceedings. It further addresses the practical requirements when appointing an expert to report on pension values, together with the consequences of internal and external transfers of pension credits... Prescribed valuation method Whether a pension is to be offset, attached or shared, the prescribed statutory valuation basis is the cash equivalent ( CE). Where the pension is already in payment, this may instead be described as the cash equivalent of benefits ( CEB). The rules for calculating and verifying CEs are contained in the Pension Sharing ( Valuation) Regulations 2000, SI 2000/1052: reg 4 sets out how CEs for rights within occupational pension schemes are to be calculated and verified regs 5 and 7 set out how CEs for rights in...
This Practice Note reviews the principal procedural aspects of family proceedings that engage trust assets, including the issue and service of proceedings. It also explains the steps required to add a trustee or a third-party beneficiary to the case, highlights evidential considerations, and summarises the court’s powers to compel a non-party to provide disclosure. Initial considerations Where either party holds or benefits from a trust interest, the applications made and the ensuing procedure will depend on the circumstances, which determine which of the three principal approaches to trust assets should be adopted, namely: considering trust assets as a resource available to one party—see Practice Note: Introduction to trusts within financial proceedings— Trusts as a financial resource the court exercising its power to make a variation of settlement order under section 24(1)(c) of the Matrimonial Causes Act 1973 ( MCA 1973) or the Civil...
This Practice Note offers clear practical guidance on the nature of trusts and how trust assets are dealt with in family financial remedy cases. It also reviews pertinent case law, the situations in which trust property might be treated as available to a party as a financial resource, and the making of ‘judicious encouragement’ orders directed at trustees. When faced with an application for a financial remedy, the court commonly adopts three principal approaches to trusts: regarding trust income or capital as a resource accessible to either party (or refusing to do so)—see: Trusts as a financial resource using its power to vary a nuptial settlement under section 24(1)(c) of the Matrimonial Causes Act 1973 ( MCA 1973) or the parallel provisions in the Civil Partnership Act 2004 ( CPA 2004)—see Practice Note: Trusts—variation of a nuptial...
At 11pm on 31 December 2020, the transition/implementation phase that followed the UK’s departure from the EU concluded—referred to in UK legislation as ‘ IP completion day’. For practical guidance on Brexit’s implications, consult Practice Note: Family proceedings with EU connections—toolkit. The court has an autonomous role and duty to examine and determine whether it possesses jurisdiction. This Practice Note outlines the procedure, requirements and criteria for staying proceedings where there are parallel proceedings in another jurisdiction under the Domicile and Matrimonial Proceedings Act 1973 ( DMPA 1973). See also the Practice Notes: Staying proceedings under the inherent jurisdiction and Staying concurrent EU proceedings (where transitional provisions apply)......
Practice Note This Practice Note outlines who may apply for a special guardianship order ( SGO) for a child as of right, and who must first obtain the court’s permission. It details the factors the court is required to consider when determining whether to give permission. It further describes the steps for seeking permission, including the prescribed application format, the necessary supporting documents, and requirements for service on relevant parties where applicable......
This Practice Note explains how to serve an application for a matrimonial or civil partnership order within the jurisdiction, where the proceedings are issued on or after 6 April 2022. It details what must be served and the available service routes, setting out requirements for personal service, service by email, and the deadlines for effecting service. It also addresses tracing the respondent, using alternative service, obtaining orders for deemed service, and applications to dispense with service. Guidance on serving a child and a protected party is included. For proceedings issued before 6 April 2022, see Practice Note: Service of applications for matrimonial and civil partnership orders within the jurisdiction (pre- DDSA 2020). For other family proceedings (not applications for matrimonial and civil partnership orders in the UK), refer to Practice Notes: Service of documents in family proceedings other than...
This Practice Note explains the tax consequences to consider when a relationship ends, ie separation, divorce or dissolution, covering income tax, capital gains tax, stamp duty land tax and inheritance tax. Independent expert guidance should be obtained where appropriate and necessary. As there are no particular tax consequences for relationships between unmarried couples or those who have not entered into a civil partnership, there are likewise no specific bespoke tax rules when their relationship breaks down. There is, however, a general capital gains tax ( CGT) principle that dealings not on arm's length terms must be treated as occurring at market value—a transaction between an unmarried/non‑civil partnership couple living together may well be regarded as not at arm's length. For married couples and civil partners, the principal relevant tax provisions applicable to spouses/civil partners stop applying when the...
Stamp Duty Land Tax ( SDLT) is payable on chargeable land transactions, namely the acquisition of a chargeable interest. For additional guidance on how SDLT works in practice and its basic principles, see Practice Note: Land transactions, chargeable interests and chargeable transactions. In Scotland, with effect from 1 April 2015, SDLT was replaced by Land and Buildings Transaction Tax ( LBTT). See Practice Note: Scotland: Land and buildings transaction tax ( LBTT)—the basics. In Wales, with effect from 1 April 2018, Land Transaction Tax ( LTT) superseded SDLT. See Practice Note: Wales: Land transaction tax ( LTT)—the basics. Accordingly, references in this Practice Note to land, property, or similar terminology in the context of SDLT should be read and understood as excluding any interest in or over land located in Scotland (from 1 April 2015) and Wales (from 1 April 2018). The first...
Public Guardian The Public Guardian is a statutory office-holder and an appointee of the Lord Chancellor. Whoever holds the Public Guardian role also serves as chief executive of the Office of the Public Guardian ( OPG), an executive agency of the Ministry of Justice ( Mo J), created when the Mental Capacity Act 2005 ( MCA 2005) came into force on 1 October 2007 at that time. A key objective of the MCA 2005 was to distinguish the Court of Protection’s judicial powers from the administrative and supervisory oversight functions of a government body. Under the MCA 2005, the Court of Protection exercises statutory jurisdiction over the property and affairs of the mentally incapacitated person ( P), while the Public Guardian undertakes the day-to-day administration and supervision of P’s affairs. The Public Guardian is also the formal registration authority for lasting and enduring powers of...
Practice Note This Practice Note outlines which financial orders the court may, and may not, alter. It further explains the court’s powers under section 31 of the Matrimonial Causes Act 1973 ( MCA 1973) and the parallel provisions in the Civil Partnership Act 2004 ( CPA 2004). It identifies which variation applications can follow the fast-track (shortened) route under the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, and highlights pertinent case law, as well as the means by which parties can vary an order by consent. Pursuant to MCA 1973, s 31, and the corresponding CPA 2004 provisions, the court may vary or discharge specified orders for financial relief—see: Orders that can be varied and Orders that cannot be varied. On occasion, the court may instead suspend an order, or reinstate a suspended term. This Practice Note describes the...
Introduction On occasion, it becomes necessary to make an urgent application to the Court of Protection in one of two scenarios: when no proceedings are on foot, yet urgent relief from the court is required before the preliminary steps to issue can be completed; or when proceedings are already underway and an unforeseen development means the court must be approached swiftly during those proceedings In essence, the same principles apply in either scenario (and they apply equally whether the application concerns the person’s health and welfare or their property and affairs). Under Practice Direction 3B on case pathways ( PD 3B), more formal requirements govern how the first category above should be brought. See Practice Note: Making an application to the Court of Protection. The particular requirements for medical treatment cases (despite their inclusion within the personal welfare case management pathway) are covered in...
Unreasonable behaviour in divorce proceedings issued prior to 6 April 2022 The Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) took effect on 6 April 2022. Proceedings issued by the court on or after that date fall within DDSA 2020 and the procedural reforms made to the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955. For additional guidance, see Practice Note: Introduction to the Divorce, Dissolution and Separation Act 2020. Proceedings issued on or before 5 April 2022 continue under the pre- DDSA 2020 law, whether started through the digital system or by paper forms. These applications are unaffected by the commencement of DDSA 2020 and the consequential changes to procedure. The same applies irrespective of the mode of submission. This document sets out the position for proceedings begun before 6 April 2022. DDSA 2020 prompted consequential legislative amendments, including revisions to FPR 2010, Pt 7. To...
In this Practice Note, 'cohabitant' denotes an unmarried partner (excluding a civil partner) of a member. This Practice Note also references the European Convention on Human Rights ( ECHR) and its relevance. The ECHR is an international treaty ratified by the UK in 1951. It became enforceable domestically through the Human Rights Act 1998, which gives legal effect to the rights guaranteed by the ECHR, giving effect to the rights contained within it. Rulings of the ECt HR are not binding; however, the Human Rights Act 1998 provides that UK courts must take into account any judgment, decision, declaration or advisory opinion of the ECt HR. As the ECHR is incorporated into UK law via the Human Rights Act 1998, neither Brexit nor the Retained EU Law ( Revocation and Reform) Act 2023 alters the UK’s position in respect of the ECHR. For details on the pension...
Practice Note This Practice Note sets out the process for undefended nullity proceedings (an application for a matrimonial order) where the application was lodged before 6 April 2022. It also outlines the requirements for obtaining an order for a medical examination. The Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) came into force on 6 April 2022. Although DDSA 2020 does not alter the substantive law governing nullity proceedings, it gives rise to consequential procedural adjustments under the amended Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, affecting applications for nullity and nullity of marriage orders issued on or after 6 April 2022. The updates are principally concerned with revised terminology, refreshed forms, and amended provisions relating to service......
Undefended judicial separation proceedings issued before 6 April 2022 This Practice Note provides an overview of the process for undefended judicial separation applications that were issued before 6 April 2022. It identifies what the court must consider before granting a decree, and the actions it must take if it is not satisfied on the prescribed matters. It addresses cross decrees, explains when the court may correct a decree, and sets out the procedure for rescinding a decree, together with when a rehearing is appropriate. The Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) came into force on 6 April 2022. Proceedings issued by the court on or after 6 April 2022 are governed by DDSA 2020 and by the changes to procedure under the amended Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955. For further information, see Practice Note:...
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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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