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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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Practice Note This Practice Note sets out the steps for an undefended divorce where the application predates 6 April 2022 and the case proceeds on paper, including the process for obtaining a decree nisi. It also details how the court may deal with costs. Guidance is included on what occurs upon the pronouncement of decree nisi. The Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) took effect on 6 April 2022. Proceedings issued by the court on or after 6 April 2022 fall under DDSA 2020 and the procedural changes to the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955. For further information, see Practice Note: Introduction to the Divorce, Dissolution and Separation Act 2020 and Procedure following service and application for a conditional order (post- DDSA 2020). Proceedings issued by the court on or before 5 April 2022 continue under the pre- DDSA 2020...
As legal aid has been withdrawn from much of family law, and with tough economic conditions plus greater competition, more family practitioners may look to provide unbundled services. Overall, the expense of operating a practice, including overheads, has risen. Conversely, many clients seek to reduce their legal spend, whether out of need or because the wider availability of legal information encourages some to handle parts of their matter themselves. As a result, some will deal with elements of their case in person, seeking targeted input only when necessary. Pay As You Go, or unbundled advice and assistance (including advocacy), can help to close this gap. What is it? Essentially, unbundling involves providing specific, limited legal advice and support to a client who is acting in person. Each piece of work is delivered as a discrete, self-contained task focused precisely on what is needed at that...
On 23 June 2016, the United Kingdom held a referendum on its EU membership, with a majority opting for the UK to leave the EU. On 29 March 2017, the Prime Minister sent formal notice of the UK’s intention to withdraw, setting in motion the Article 50 TEU process. At 11 pm on 31 January 2020 (exit day), the UK’s withdrawal took effect in law and the UK ceased to be an EU Member State. Exit day signalled the close of the Article 50 withdrawal phase and the beginning of a time-limited transition/implementation period, during which the interim arrangements in Part 4 of the Withdrawal Agreement applied. These transitional measures created a standstill period while the UK and the EU set about implementing the Withdrawal Agreement and negotiating the legal terms governing their future relationship, to apply after the transition ended. The EU- UK Trade and...
This Practice Note offers a concise overview of the principal UK taxes that can affect individuals who are not UK resident, namely: income tax capital gains tax ( CGT) inheritance tax ( IHT) value added tax ( VAT) national insurance contributions ( NICs) the annual tax on enveloped dwellings ( ATED) stamp duty land tax ( SDLT) As a general rule, UK tax law operates within territorial boundaries, meaning either the item taxed must arise from a UK source, or the person charged is resident in the UK. Unlike many countries, the UK tax year does not follow the calendar year; it runs from 6 April to 5 April. Non-residence for tax purposes An individual is treated as non-resident for UK tax purposes if they meet the non-resident conditions of the statutory residence test for periods after 5 April 2013 (see Practice Note: Residence after 5 April 2013). For the position before 6 April 2013, see...
This Practice Note sets out the tax implications of entering into marriage and civil partnership, including in relation to income tax, capital gains tax and inheritance tax. Seek specialist advice where appropriate. The tax treatment of civil partners mirrors that of spouses. For UK tax purposes, an individual is regarded as married or as a civil partner if they have undergone a formal marriage or civil partnership ceremony, or, from 10 December 2014, have converted a civil partnership into a marriage by formal declaration. Simply living together, or being in a so‑called common law relationship, does not amount to marriage or civil partnership. Income tax and capital gains tax ( CGT) rules refer to spouses/civil partners who are “living together”. This phrase does not require sharing the same home—or even the same country. It covers all spouses/civil partners unless one of the following...
Brexit impact The UK ceased to be an EU Member State on exit day, 31 January 2020. Under the Withdrawal Agreement, the state pension and benefit rights of UK nationals residing in the EU, European Economic Area ( EEA) or Switzerland are protected. See: Benefits and pensions for UK nationals in the EU, EEA or Switzerland. Likewise, information on the entitlements of EEA and Swiss citizens to UK benefits and state pensions is set out at: Benefits and pensions for EEA and Swiss citizens in the UK. State pensions A state retirement pension depends on an individual’s National Insurance ( NI) contribution record and may consist of up to three elements: the basic old age pension the State Second Pension ( S2P—formerly the State Earnings Related Pension Scheme, SERPS) the graduated pension Payments are generally made gross, with tax collected through Pay As You Earn ( PAYE) against a...
Government policy For many years, as a feature of government policy in the UK, the establishment of private pensions to sit alongside state provision has been actively promoted. This initially took the form of occupational pension schemes set up by employers for their workforces and, in later years, broadened to include personal pensions arranged by individuals themselves. The principal means of encouragement has been the granting of tax reliefs, both to those creating pension schemes and to their members, in respect of contributions, pension fund income, and pension benefits. It should also be recognised that, until very recently, neither the offering of private pensions in the UK nor membership of a pension scheme was compulsory; even now, exceptions apply (see ‘ Stakeholder pension schemes’ and ‘ Automating enrolment and the National Employment Savings Trust ( NEST)’ below). General administration of private pension schemes rests with the...
Across the UK, the majority of private sector pension arrangements—covering both occupational and personal plans—are created as trusts and, as such, fall within the scope of trust law. Trustees appointed under the governing trust deed must operate in line with that deed, the scheme rules, and any overriding legislation relevant to the scheme at all times. Above all, trust law requires trustees to prioritise the best interests of scheme members, but always consistently within the confines of the scheme’s own governing provisions and any applicable general law, in every decision they make under the scheme. Within the public sector, pension arrangements are predominantly set up by Parliamentary statute and are governed by their scheme rules and overriding legislation currently in force; however, some are constituted as trusts, bringing them under trust law and obliging compliance with the trust deed, the rules, with any...
Requirements for PPF entry The conditions for a scheme to transfer into the PPF are: the scheme must be an eligible scheme—see: What schemes are eligible? below and either: a qualifying insolvency event must occur in relation to a scheme employer—see: What is a qualifying insolvency event? below, or the employer is unlikely to continue as a going concern and meets SI 2005/590, reg 7—see: Alternative route to PPF entry, below the insolvency practitioner for the employer must confirm that a scheme rescue cannot proceed—see: Duty of insolvency practitioner to issue notices confirming status of scheme (section 122 notices) and the scheme’s assets must be below the ‘protected liabilities’ (broadly, the benefits the PPF would pay to...
Practice Note This Practice Note sets out the main procedural requirements for an application for limited or indefinite leave to remain/settlement as a spouse, civil partner or unmarried partner under Appendix FM, Appendix Settlement Family Life (for those seeking indefinite leave to remain on the ten-year route to settlement), or Part 8 of the Immigration Rules. It further covers procedural points relating to the following categories: applications for limited leave to remain by people who presently hold leave as a fiancé(e) or proposed civil partner under Appendix FM, who have since married or entered into a civil partnership and are now seeking leave as a spouse or civil partner applications for further leave as a fiancé(e) or proposed civil partner in the narrow circumstances permitted by the Immigration Rules The Practice Note does not address the substantive eligibility...
This Practice Note is aimed at private-sector commercial organisations in the UK. It explains the Information Commissioner’s Office ( ICO) expectations for securing, recording and managing consent to process personal data, and mirrors UK General Data Protection Regulation ( UK GDPR) requirements concerning consent... What is consent? Consent is a freely given, specific, informed and unambiguous sign of the data subject’s wishes whereby they, by a statement or a clear positive action, confirm agreement to the processing of personal data. Accordingly, consent must be: freely given specific informed unambiguous There are two levels of consent based on the type of data processed: standard consent, required when relying on consent to process non-sensitive personal data explicit consent, required when relying on consent to process special category (sensitive) personal data—there is no definition of explicit consent but see Practice Note: How to...
This Practice Note outlines the key rules for taxing income, capital gains, lifetime gifts and estates on death (inheritance tax), together with stamp duty land tax, on the basis of an individual who is UK-resident and domiciled. As tax legislation is frequently amended, this note is not, and must not be, treated as a replacement for specific professional advice where required. Income tax Individuals are charged to income tax on their overall income, with distinct regimes applying to different income streams and to qualifying outgoings that can be set against that income. The main categories of income include: pay from employment, or profits from a trade, profession or vocation (on which national insurance contributions are also due) rents from furnished or unfurnished property or land interest and dividend receipts overseas income (which may already have suffered foreign tax) A personal allowance is deducted from an...
This Practice Note This Practice Note explores trusts and property law that may arise in family proceedings, including invalid or sham trusts, and property law questions such as proprietary estoppel and improper transfers. It also addresses when deploying these areas may aid a party in family cases, together with the evidence needed to advance trusts or property law submissions. The court may vary a settlement within section 24(1)(c) of the Matrimonial Causes Act 1973 ( MCA 1973) or Schedule 5, Part 2 to the Civil Partnership Act 2004 ( CPA 2004) (see Practice Note: Trusts—variation of a nuptial settlement), or treat trust assets as a financial resource of a party (see: Introduction to trusts within financial proceedings— Trusts as a financial resource). The court may further take account of trust assets by making findings and/or granting relief grounded in trusts or property law that go to the...
It is fairly common for trustees to encounter obstacles when administering trusts, sometimes of a difficult or technical kind. In such circumstances, they may seek the court’s guidance, and they are likewise entitled to the court’s protection while discharging their obligations under a trust. When a trustee invites the court to exercise its powers in a matter affecting the trust, the court’s sole focus is what best serves the trust’s interests; it is not chiefly preoccupied with the rights or positions of adversarial parties. Trustees who obtain a ruling from the court of first instance are safeguarded so long as they comply with what has been determined; however, if they pursue an appeal and are unsuccessful, they face an almost inevitable order to pay costs. A notable distinction arises when a trustee contemplates an application to the court. Where a...
ARCHIVED: This archived Practice Note outlines the transitional measures introduced on the commencement of the Family Procedure Rules 2010, which in 2011 replaced the Family Proceedings Rules 1999. It is supplied solely for background purposes and is not maintained. For practical guidance on the general principles of the FPR 2010, see the following Practice Notes: Family Procedure Rules 2010 index Introduction to the Family Procedure Rules 2010 Court's case management powers— FPR 2010 FPR 2010—overriding objective Introduction The transitional arrangements for the Family Procedure Rules, SI 2010/2955 ( FPR 2010), are contained in FPR 2010, PD 36A and supplement FPR 2010, Pt 36. FPR 2010, PD 36A addresses the application of the FPR 2010 to proceedings begun before 6 April 2011 (existing proceedings)......
Pre-action protocol There is no dedicated pre-action protocol for claims brought under the Trusts of Land and Appointment of Trustees Act 1996 ( TOLATA 1996). Accordingly, parties should refer to the Practice Direction Pre- Action Conduct and Protocols (previously Practice Direction— Pre- Action Conduct). The current Practice Direction took effect on 6 April 2015 and was most recently updated on 6 April 2022, introducing a shorter, clearer set of steps to follow before proceedings are started, and it has been revised periodically. It is contained within the Civil Procedure Rules 1998 ( CPR), SI 1998/3132, and sets out the conduct expected of parties before issue. Except in the most urgent circumstances, or where an application is made pursuant to an agreement, before commencing court proceedings—and whether the claim is pursued under CPR Part 7 or CPR Part 8—the court will ordinarily expect the parties to share...
This Practice Note sets out the differences between Parts 7 and 8 of the Civil Procedure Rules 1998 ( CPR), SI 1998/3132, in the context of claims pursued under the Trusts of Land and Appointment of Trustees Act 1996 ( TOLATA 1996), and includes a synopsis of both procedures while considering departures from the Part 8 route and the question of costs. When should proceedings be issued under Part 7 and when should proceedings be issued under Part 8? A TOLATA 1996 claim can be started under CPR Part 7 or under Part 8. As a trusts-related claim, a TOLATA 1996 claim is frequently viewed as more appropriate for the Part 8 procedure, by analogy with the requirements of CPR 64.2; however, those provisions apply solely to claims concerning the execution of a trust or brought under the Variation of Trusts Act 1958....
This Practice Note outlines the situations in which a third party may have an interest in financial remedy proceedings. It also covers how to join a third party, key case law, and practical considerations. Third-party interests may affect the parties’ finances in many ways. The level of third-party involvement differs by case, but potential interests should be identified early to avoid a consent or final order that later cannot be implemented. See also Practice Note: Joinder of third parties in financial proceedings for further practical guidance on joinder and procedure. Potential third-party interests Property subject to a mortgage Pension assets Business or trust interests Issues of insolvency Debts to litigation funding providers Co-ownership of property with third parties......
Practice Note This Practice Note explains the criteria and process for enforcing an order made in family proceedings by means of a third party debt order. They were introduced by the Family Procedure Rules 2010, replacing garnishee orders. It outlines which debts are enforceable, how to apply for and serve an interim third party debt order, and the limitations associated with a final third party debt order. Hardship payments orders and the potential cost implications are also covered. A third party debt order enables a creditor to recover a debt from money owed to the debtor by a third party within the jurisdiction. Commonly, this involves funds held in the debtor’s name at a bank or building society, or sums due to a self‑employed debtor arising from their trade. Whether to grant a third party debt order is a matter for the court’s...
The 'three-year rule' and why it applies Through the Enterprise Act 2002 ( En A 2002), a new section 283A was added to the Insolvency Act 1986 ( IA 1986). In effect, it affords the trustee in bankruptcy (trustee) a three-year window to take appropriate action to realise or protect the bankrupt’s interest in the bankrupt’s home (as defined, see below). If no such steps are taken within that period, the interest drops out of the bankruptcy estate and automatically re-vests in the bankrupt. This measure, widely referred to as the 'three-year rule', applies to anyone adjudged bankrupt after 29 December 1986 (the commencement date of IA 1986) on a petition issued on or after that date (see Pannell v Official Receiver), while transitional arrangements operate for any bankruptcy begun before 1 April 2004. The intent behind the three-year rule was to remove the undue delay...
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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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