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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 practice, the choice of a hedge fund’s legal form is led by regulatory and tax factors. From a tax perspective, as with any fund, the aim is, so far as practicable, to leave each investor in much the same tax position as if they held the fund’s assets outright. Against that backdrop, hedge fund-style offerings usually take one of two shapes: a managed account—ie a ‘no fund’ set-up a fund—ie a pooled investment vehicle If a pooled vehicle is selected, further points arise: whether the fund should be: onshore (ie UK, an OECD country, or EU) or offshore (and, if so, which jurisdiction) a partnership or a corporate entity a reporting or non-reporting fund for the UK offshore funds regime ...
Practice Note: Tax and hedge funds—structuring the hedge fund vehicle When shaping how a hedge fund’s investment management should be arranged, the choice of legal vehicle for the fund itself—and, in particular, where it is formed—matters greatly. As discussed in Practice Note: Tax and hedge funds—structuring the hedge fund vehicle, a hedge fund vehicle can, in practice, adopt one of these structures: a Cayman Islands company a limited partnership an entity set up in another low (non- EU) tax jurisdiction (eg the Channel Islands, British Virgin Islands or Bermuda), or an entity or structure created under a special tax exemption regime in an EU or OECD member country (eg a Luxembourg SICAV or an Irish OEIC) This Practice Note explores the key tax issues when deciding how to organise the management of the fund’s investments. For these purposes, it is assumed that management is undertaken from the UK, which...
Data security sits at the heart of the UK General Data Protection Regulation ( UK GDPR). The sixth data protection principle — integrity and confidentiality — obliges you to implement suitable technical and organisational steps so that personal data is handled with appropriate safeguards and security when processed, including: protection against unauthorised or unlawful processing accidental loss, destruction or damage This Practice Note draws on ICO guidance regarding personal data breaches under the UK GDPR. It also incorporates further practical pointers and information drawn from ICO guidance on managing data security breaches issued under the previous data protection regime; that guidance has now been withdrawn. The Practice Note additionally aligns with materials from the European Data Protection Board ( EDPB). According to the ICO, although the UK has left the EU, these guidelines continue to be...
This Practice Note offers additional guidance on the principal definitions found in the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 (the UK GDPR). For a high-level overview of UK data protection legislation, see Practice Notes: The UK General Data Protection Regulation ( UK GDPR) and Data protection law—new starter guide. The UK data protection law collection brings together further general guidance and is a recommended first point of reference for research. Scope of this Practice Note Given the significant volume of data moving between the UK and the EEA, corresponding EEA data protection rules remain particularly relevant to UK practitioners. There continues to be substantial similarity between: the EU GDPR (which was applicable under UK laws until the close of the Brexit implementation period at 11 pm UK time on 31 December 2020 and still applies within the EEA) the UK GDPR...
This Practice Note sets out the requirements of the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR), where a processor handles personal data for a controller in a commercial setting. It proceeds on the basis that readers are already familiar with core data protection concepts, terminology, and the functions of key regulators. For an initial overview of data protection law, consult the ‘key principles and concepts’ tab in the UK Data Protection toolkit, which is a recommended starting point for research. For a higher-level primer on this topic and connected matters, see: Data sharing and transactions—overview. This Practice Note also sits within the Data protection negotiation guide—controller: processor—collection, which practitioners drafting or negotiating data protection clauses between a controller and a processor may find helpful. In brief UK data protection legislation aims to ensure information about living people (within the scope of...
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...
Scope of this Practice Note This Practice Note outlines information on the regulated activities of entering, as provider, into funeral plan contracts and performing funeral plan contracts as provider under article 59 of the Financial Services and Markets Act 2000 ( Regulated Activities) Order 2001, SI 2001/544 ( RAO), as amended from time to time. It also highlights the Financial Conduct Authority’s ( FCA) regulatory framework as it applies to those undertaking these regulated funeral plan activities. Entering into funeral plan contracts Under RAO, SI 2001/544, art 59(1), entering into a funeral plan contract in the capacity of provider is a regulated activity. The FCA defines a ‘provider’ as the person who receives the pre-payments and undertakes to provide, or to arrange the provision of, the funeral at a future point. This could be the funeral director or a third party that arranges for someone else to...
STOP PRESS/ FORTHCOMING CHANGES : The UK intends to transpose the OECD’s Cryptoasset Reporting Framework ( CARF) into domestic law from 1 January 2026. This will be delivered via the Reporting Cryptoasset Service Providers ( Due Diligence and Reporting Requirements) Regulations 2025 ( SI 2025/744), laid before the House of Commons on 25 June 2025. On the same day, HMRC issued tax impact and information notes ( TIIN) for the measure, and also released guidance covering CARF reporting. At the same time, the government has brought forward amendments to the domestic implementation of the OECD’s Common Reporting Standard ( CRS) and to the UK’s obligations under the Intergovernmental Agreement with the US for the US Foreign Account Tax Compliance Act ( FATCA). The principal framework remains the International Tax Compliance Regulations 2015 ( SI 2015/878), with changes introduced by the...
This Practice Note This Practice Note reviews the remit of the Financial Conduct Authority ( FCA), the Prudential Regulation Authority ( PRA) and the Bank of England ( Bo E) to seek injunctive relief from the High Court under section 380 of the Financial Services and Markets Act 2000 ( FSMA 2000). For the FCA in particular, it also covers injunctions addressing market abuse under section 381, including applications brought alongside requests for administrative sanctions under section 129. The Note additionally considers the FCA’s ability to obtain asset-freezing orders via sections 380 and 381 and the court’s inherent jurisdiction, together with its power to pursue injunctions under the Consumer Rights Act 2015 ( CRA 2015). It incorporates updates to the FCA’s Enforcement Guide ( ENFG), which has replaced the previous Enforcement Guide ( EG) for investigations opened on or after 3 June 2025, and...
This FLASHCARD helps you take in or remember the key issues around the financial services ‘regulatory perimeter’ set out in Part II of the Financial Services and Markets Act 2000 ( FSMA 2000). What is the financial services regulatory perimeter? The financial services regulatory perimeter consists of two central prohibitions that underpin it: the general prohibition the financial promotion restriction Breaching either prohibition is a criminal offence, and agreements entered into as a result of such breaches may not be enforceable. It is also an offence for a person who is neither authorised nor exempt to hold themselves out (in any terms) as authorised or exempt in relation to a regulated activity. What is the general prohibition? Set out in FSMA 2000, s 19, the general prohibition bars any person from carrying on a regulated activity in the UK, or claiming to do so, unless...
The Financial Services Act 2012 ( FSA 2012) introduced a fresh regulatory framework in the UK, shifting the Financial Services Authority’s functions to the Financial Conduct Authority ( FCA) and the Prudential Regulation Authority ( PRA), encompassing duties within the Financial Services and Markets Act 2000 ( FSMA 2000) controllers regime. The pertinent provisions took effect on 1 April 2013. This Practice Note offers an overview of how FSA 2012 amended the controllers regime, outlining the key adjustments and their scope. For further reading on the FSMA 2000 controllers regime as revised by FSA 2012, see Practice Notes: FSMA 2000 controllers regime—key concepts Obligations of controllers—acquiring and increasing control Obligations of controllers—reducing or ceasing control FSMA 2000 controllers regime—obligations for firms FSMA 2000 controllers regime—fund managers Enforcement of the FSMA 2000 controllers regime For practical steps that...
Where and how does the general prohibition apply? At the core of the UK regulatory framework sits a basic restriction: no individual or firm may perform a regulated activity in the UK, or hold themselves out as doing so, unless they are authorised or fall within an exemption. This is the “general prohibition” set out in section 19 of the Financial Services and Markets Act 2000 ( FSMA 2000). In strict terms, the general prohibition only bites when a person carries on, or claims to carry on, a regulated activity in the UK. Yet FSMA 2000 does not exhaustively define the circumstances in which an activity is regarded as being undertaken in the UK, meaning the question of whether an activity is regulated is ultimately determined by the general law. This Practice Note considers the territorial scope of the general...
This Practice Note outlines the role and functioning of the Financial Services Compensation Scheme ( FSCS), and explains how deposits protected by it are ranked within the waterfall of payments to creditors should a relevant firm become insolvent. For further information on the FSCS, see the following Practice Notes: The Financial Services Compensation Scheme Financial Services Compensation Scheme ( FSCS)—the qualifying conditions for compensation Financial Services Compensation Scheme ( FSCS)—automatic assignment or subrogation of rights Financial Services Compensation Scheme ( FSCS)—payment or rejection of compensation Financial Services Compensation Scheme ( FSCS)—funding Role and operation of the FSCS What is the FSCS? The FSCS was created by the Financial Services and Markets Act 2000 ( FSMA 2000) as an independent body that safeguards customers when a financial institution or financial services firm is unable, or likely to be unable, to meet claims...
This Practice Note examines the Financial Services Compensation Scheme ( FSCS) in a pensions setting. For more background on the FSCS generally, consult the following Practice Notes: The Financial Services Compensation Scheme The payment or rejection of compensation under the Financial Services Compensation Scheme ( FSCS) Financial Services Compensation Scheme ( FSCS)—the qualifying conditions for compensation Financial Services Compensation Scheme ( FSCS)—funding Financial Services Compensation Scheme ( FSCS)—automatic assignment or subrogation of rights Financial Services Compensation Scheme ( FSCS)—payment or rejection of compensation What is the FSCS? The FSCS is the UK’s statutory compensation fund for customers of most financial services firms authorised under the Financial Services and Markets Act 2000 ( FSMA 2000). It took effect on 1 December 2001. In strict terms, the FSCS is the set of rules that establish it (the Rules). The Rules were originally made by the Financial Services Authority ( FSA) and, from 1 April 2013, have...
Financial services contracts regime ( FSCR) This Practice Note reviews the financial services contracts regime ( FSCR), which took effect at the close of the implementation period following the UK’s withdrawal from the EU. The FSCR applies by default to EEA passporting firms with pre-existing UK contracts that require permission to service, where those firms did not notify the Financial Conduct Authority ( FCA) or the Prudential Regulation Authority ( PRA) of their wish to enter the temporary permissions regime ( TPR), or where they leave the TPR without obtaining full UK authorisation. The regime permits those firms to go on servicing UK contracts concluded before the end of the implementation period, or before exiting the TPR, for a limited time, provided they satisfy the FSCR’s conditions. The European Union ( Withdrawal) Act 2018, as amended by the European Union (...
Scope of this Practice Note This Practice Note explores the measures that have been adopted by the UK government and by financial watchdogs—particularly the Financial Conduct Authority ( FCA), the Bank of England ( Bo E) (including the Prudential Regulation Authority ( PRA)) and the Payment Systems Regulator ( PSR)—to foster innovation in the UK financial technology (fintech) market, and to do so within a well‑regulated framework. It outlines the leading financial innovations; charts the current position of the fintech sector and the successes achieved to date; considers the future prospects together with the associated risks linked to financial innovation; and sets out the regulatory approach that is intended to stimulate the development of, and investment across, the fintech industry. It also examines the part played by financial regulators in response to the growing use of artificial intelligence ( AI). Fintech covers a wide...
How to use this Practice Note The terminology and meanings adopted in this Practice Note mirror those in the Financial Conduct Authority ( FCA) Handbook and the Prudential Regulation Authority ( PRA) Rulebook (together, the Regulators). Entities that are authorised, or intend to obtain authorisation, are described in the Handbook and Rulebook as ‘firms’. For consistency, that label is used throughout this Practice Note. A complete definition of ‘firm’ appears in the FCA and PRA Glossary. This Practice Note is set out in two sections and will help you to: determine whether your firm carries on a regulated activity and therefore needs authorisation or a variation to an existing permission navigate the steps to secure authorisation or to lodge an application to vary an existing permission The risk for in-house lawyers The supply of financial services and products is no longer confined to banks and...
ARCHIVED: This Practice Note is archived and no longer maintained following the UK regulators’ March 2025 decisions to drop D& I reforms after stakeholder feedback, in light of legislative changes and to minimise regulatory burdens on firms. D& I is addressed in Practice Note: FCA supervisory and enforcement focus on culture. Proposals on non-financial misconduct were progressed; see Practice Note: Non-financial misconduct in financial services—essentials. Developments in both areas are tracked in: Culture and social governance in financial services—timeline. This Practice Note reviews the Financial Conduct Authority’s ( FCA) and Prudential Regulation Authority’s ( PRA) proposed regulatory frameworks for diversity and inclusion in the financial services sector as set out in FCA CP23/20: Diversity and inclusion in the financial sector—working together to drive change, and PRA CP18/23: Diversity and inclusion in PRA-regulated firms. It also includes responses and feedback on the...
This Practice Note considers the requirements and guidance on risk control (the risk control rules) relevant to firms, drawn from the Senior Management Arrangements, Systems and Controls sourcebook in the Financial Conduct Authority ( FCA) Handbook ( SYSC) and the Prudential Regulation Authority ( PRA) Rulebook, and includes measures that will replace Commission Delegated Assimilated Regulation ( EU) 2017/565 (the UK Mi FID II Organisational Regulation) upon its revocation on 23 October 2025. Risk control rules applying to UK financial services firms The risk control rules applicable to firms are contained in: the overarching obligation to maintain effective risk control processes in SYSC 4.1.1R SYSC 7 Risk control SYSC 21 Risk control: guidance on governance arrangements Dual-regulated firms should also be mindful of parallel provisions in the following sections of the PRA Rulebook: Risk Control (which applies to CRR firms, as defined in the PRA...
This Practice Note sets out how the Financial Conduct Authority ( FCA), the Payment Systems Regulator ( PSR), the Prudential Regulation Authority ( PRA) and the Financial Policy Committee ( FPC) interact and co-ordinate effectively. It also outlines the ways in which UK regulators engage with regulators and regulatory bodies beyond the UK, including the memorandum of understanding ( Mo U) on financial services between the EU and the UK. For guidance on each regulator, see: UK regulators—financial services—overview. UK regulatory structure The Financial Services Act 2012 ( FSA 2012) revised existing financial services legislation, in particular the Financial Services and Markets Act 2000 ( FSMA 2000), by abolishing the Financial Services Authority ( FSA) and assigning the Bank of England ( Bo E) responsibility for financial stability, bringing together macro and micro prudential regulation......
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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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