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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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This Practice Note sets out information on how Brexit affects financial services, notably the removal of passporting rights, and the steps UK and EU firms should take now that the UK is treated as a third country for the purposes of EU financial services law after the close of the implementation period. It outlines the consequences for the sector, including the loss of passporting and the UK’s third-country status under EU financial services legislation once the implementation period ended. Further financial services materials on Brexit can be found in Practice Note: Brexit and financial services: materials on the post- Brexit UK/ EU regulatory regime [ Archived] and the Brexit collection. The end of the implementation period The UK left the EU on 31 January 2020 (exit day) and moved into an implementation period (described as a ‘transition period’ in the Withdrawal...
Quick Look Brexit Financial Services Legislation Status Guide This guide offers high-level details on the status of Regulation ( EU) 2015/2365 on the transparency of securities financing transactions and of reuse, and the amending Regulation ( EU) 648/2012 ( SFTR), under UK law from 1 January 2021. For fuller guidance, including reporting, see Practice Note: Impact of Brexit: SFTR—quick guide [ Archived]. For an overview of financial services materials on Brexit, see Practice Note: Brexit and financial services: materials on the post- Brexit UK/ EU regulatory regime [ Archived]. During the implementation period from 31 January 2020 to 31 December 2020 ( IP completion day), SFTR applied directly in the UK under the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018), as amended by the European Union ( Withdrawal Agreement) Act 2020, and the Withdrawal Agreement between the UK and the EU. From 1...
Quick Look Brexit Financial Services Legislation Status Guide This guide offers concise, high‑level information on the status of Regulation ( EU) 2017/2402 ( OJ L 347/35) ( EU Securitisation Regulation) in UK law from 1 January 2021. For further detail, see Practice Note: Impact of Brexit: Securitisation Regulation—quick guide [ Archived]. During the implementation period, which began on 31 January 2020 and ended on 31 December 2020 ( IP completion day), the EU Securitisation Regulation had direct effect in the UK under the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018), as amended by the European Union ( Withdrawal Agreement) Act 2020 ( EU( WA) A 2020), and the Withdrawal Agreement between the UK and the EU. From 1 January 2021: the EU Securitisation Regulation and its level 2 measures, adjusted by statutory instruments ( SIs) made as part of the onshoring exercise under EU( W) A...
Practice Note This Practice Note explains how Brexit affects the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II) and the Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014) ( Mi FIR) (together, the Mi FID II regime). It outlines the general approach to the regime and identifies principal issues across particular areas, including: passporting transparency share and derivatives trading obligations transaction reporting and reference data data reporting service providers market operators The European Union ( Withdrawal) Act 2018 ( EU( W) A 2018), as amended by the European Union ( Withdrawal Agreement) Act 2020 ( EU( WA) A 2020), provides for ratification and implementation in domestic law of the Withdrawal Agreement between the UK and the EU. The Withdrawal Agreement sets out the framework for the UK’s exit from the EU and...
Quick Look Brexit Financial Services Legislation Status Guide This guide sets out high-level information on the position of Regulation ( EU) 596/2014 ( OJ L 173/1) (the EU Market Abuse Regulation) in UK law from 1 January 2021. For further detail, see Practice Note: Impact of Brexit: Market Abuse Regulation—quick guide. Across the implementation period starting on 31 January 2020 and ending on 31 December 2020 ( IP completion day), the EU Market Abuse Regulation had direct effect in the UK pursuant to the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018), as amended by the European Union ( Withdrawal Agreement) Act 2020 ( EU( WA) A 2020), and the Withdrawal Agreement between the UK and the EU. From 1 January 2021: the EU Market Abuse Regulation, as adjusted by statutory instruments ( SIs) made as part of the onshoring process under EU( W) A 2018,...
Overview of onshored and preserved EU-derived law post- IP completion day This brief guide sets out high-level details of the steps taken under the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) to onshore Regulation ( EU) 596/2014 ( OJ L 173/1) (the EU Market Abuse Regulation). The main instrument used under EU( W) A 2018 to bring the EU Market Abuse Regulation into UK law was the Market Abuse ( Amendment) ( EU Exit) Regulations 2019, SI 2019/310 (the Market Abuse Exit Regulations), made on 18 February 2019. The Market Abuse Exit Regulations have been further amended by: Gibraltar ( Miscellaneous Amendments) ( EU Exit) Regulations 2019, SI 2019/680; Financial Services ( Electronic Money, Payment Services and Miscellaneous Amendments) ( EU Exit) Regulations 2019, SI 2019/1212; and Financial Services and Economic and Monetary Policy ( Consequential Amendments) ( EU Exit)...
This quick guide to the Interchange Fee Regulation ( Regulation ( EU) 2015/751) ( OJ L 123/1) ( EU IFR) provides an overview of UK legislation and retained EU law concerning requirements altered by the Interchange Fee ( Amendment) ( EU Exit) Regulations 2019, SI 2019/284 (the Interchange Fee Exit Regulations 2019), together with other instruments made at the end of the implementation period following the UK’s withdrawal from the EU. It also signposts associated updates to Financial Conduct Authority ( FCA) and Payment Systems Regulator ( PSR) rules and guidance. The summary below explains the Brexit arrangements for onshoring EU rules that apply to payment account providers after IP completion day. Overview of onshored and preserved EU-derived law post- IP completion day The Interchange Fee Exit Regulations 2019 sit within HM Treasury’s programme of statutory instruments under the European Union (...
This insurance distribution quick guide explains the present UK legislation and retained EU legislation concerning insurance distribution obligations that were altered and/or repealed by the Insurance Distribution ( Amendment) ( EU Exit) Regulations 2019, SI 2019/663 ( ID Exit Regulations 2019) and by other instruments at the close of the implementation period after the UK’s exit from the EU, together with related updates to the Financial Conduct Authority ( FCA) rules and guidance. Overview of onshored and preserved EU-derived law post- IP completion day The ID Exit Regulations 2019 were laid on 25 March 2019. That SI sits within HM Treasury’s suite of statutory instruments made under the European Union ( Withdrawal) Act 2018, EU( W) A 2018, addressing contingency planning for a potential ‘no deal’ Brexit. It forms part of the wider move to domesticate EU law so that legal continuity was...
BREXIT At eleven pm ( GMT) on 31 December 2020 ( IP completion day), the transition/implementation period that followed the UK’s departure from the EU ended. From IP completion day, core transitional measures ceased and notable changes started to apply across the UK’s legal regime. This document offers guidance on areas affected by those shifts. Before carrying on with your research, see: Brexit and financial services: materials on the post- Brexit UK/ EU regulatory regime [ Archived]. This quick guide on regulated activities and financial promotions outlines current UK legislation and retained EU legislation concerning the carrying on of regulated activities and the issue or approval of financial promotions that were amended and/or revoked by the Financial Services and Markets Act 2000 ( Amendment) ( EU Exit) Regulations 2019, SI 2019/632 ( FSMA Exit Regulations 2019), and other instruments at the end of the...
This quick guide details current UK legislation and retained EU legislation that has been amended and/or revoked by: the Over the Counter Derivatives, Central Counterparties and Trade Repositories ( Amendment, etc, and Transitional Provision) ( EU Exit) Regulations 2019 SI 2019/335 (the OTC SI) the Central Counterparties ( Amendment, etc, and Transitional Provision) ( EU Exit) Regulations 2018 SI 2018/1184 (the CCP SI) the Trade Repositories ( Amendment and Transitional Provision) ( EU Exit) Regulations 2018 SI 2018/1318 (the TR SI) the Investment Exchanges, Clearing Houses and Central Securities Depositories ( Amendment) ( EU Exit) Regulations 2019 SI 2019/662 (the IE SI), and the Equivalence Determinations for Financial Services and Miscellaneous Provisions ( Amendment etc) ( EU Exit) Regulations 2019, SI 2019/541 (the Equivalence SI and, together with the OTC SI, the CCP SI, the TR SI and the IE SI, the...
ARCHIVED: This Practice Note has been archived and is not maintained. For updates on the CRR in the EU and UK post- Brexit, including matters outlined in this Practice Note, consult the following Practice Notes: EU CRD IV package—essentials UK Capital Requirements Regulation ( UK CRR)—technical standards [ Archived] The EU banking package— CRD V, CRR II, BRRD II and SRMR II The UK prudential regime for banks, building societies and systemically important investment firms FLASHCARD— EU CRR III, CRD VI and the ‘daisy chain’ proposal This Quick Look Brexit Financial Services Legislation Status Guide sets out high-level information on the position of the Capital Requirements Regulation ( EU) 575/2013 (the EU CRR), and its amending Regulation ( EU) 2019/876 ( EU CRR II), within UK law from 1 January 2021. For a concise overview of Brexit’s effect on...
This Brexit Alternative Investment Fund Managers Directive 2011/61/ EC ( AIFMD) quick guide outlines the UK legislation and retained EU measures affecting alternative investment fund managers ( AIFMs) that are amended and/or revoked by the Alternative Investment Fund Managers ( Amendment etc.) ( EU Exit) Regulations 2019, SI 2019/328 (the AIFMD Exit Regulations), together with other instruments operative at the end of the implementation period after the UK’s departure from the EU, and the related updates to Financial Conduct Authority ( FCA) rules and guidance. The summary below explains the framework for onshoring EU requirements for AIFMs post- Brexit implementation period. For additional, practical material on Brexit readiness for asset managers and investment funds, including the consequences for AIFM delegation, see Practice Note: Impact of Brexit on asset managers and investment funds [...
Quick Look Brexit Financial Services Legislation Status Guide This guide sets out high-level information on the status of Regulation ( EU) 2016/1011 ( OJ L 171/1) (the EU Benchmarks Regulation) in UK law from 1 January 2021. For fuller detail, see Practice Note: Impact of Brexit: Benchmarks Regulation—quick guide [ Archived]... Across the implementation period starting on 1 January 2020 and ending on 31 January 2020 ( IP completion day), the EU Benchmarks Regulation applied directly in the UK in line with the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018), as amended by the European Union ( Withdrawal Agreement) Act 2020 ( EU( WA) A 2020), and the Withdrawal Agreement between the UK and the EU... From 1 January 2021: The EU Benchmarks Regulation provisions, as adapted by statutory instruments ( SIs) made during the onshoring process under EU( W) A 2018, form part of EU...
Quick Look Brexit Financial Services Legislation Status Guide This guide provides a high-level summary of the status of the Central Securities Depositories Regulation ( EU) 909/2014 ( OJ L 257/1) ( EU CSDR) under UK law from 1 January 2021. During the implementation period running from 31 January 2020 to 31 December 2020 ( IP completion day), the EU CSDR was directly applicable in the UK in line with the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018), as amended by the European Union ( Withdrawal Agreement) Act 2020 ( EU( WA) A 2020), together with the Withdrawal Agreement between the UK and the EU. With effect from 1 January 2021: the EU CSDR and the associated level 2 measures, as adjusted by statutory instruments ( SIs) made as part of the onshoring process under EU( W) A 2018, form part of EU...
This Solvency II quick guide outlines current UK legislation and retained EU law concerning prudential insurance obligations that has been amended and/or revoked by the Solvency 2 and Insurance ( Amendment, etc) ( EU Exit) Regulations 2019, SI 2019/407 (as amended by the Financial Services ( Miscellaneous) ( Amendment) ( EU Exit) ( No 3) Regulations 2019, SI 2019/1390) (the Solvency 2 and Insurance Exit Regulations); the Risk Transformation and Solvency 2 ( Amendment) ( EU Exit) Regulations 2019, SI 2019/1233 (the Risk and Solvency 2 Exit Regulations); the Electronic Commerce and Solvency 2 ( Amendment etc.) ( EU Exit) Regulations 2019, SI 2019/1361 (as amended by the Financial Services ( Miscellaneous) ( Amendment) ( EU Exit) ( No 3) Regulations 2019, SI 2019/1390) (the E- Commerce and Solvency 2 Exit Regulations); and other measures at the end of the...
This Practice Note outlines retained EU law as it operated in 2021–23, setting out key definitions and concepts with pointers to the relevant provisions of the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018). It further considers the overhaul of retained EU law and its re-labelling as assimilated law from 2024. Wider aspects of the EU( W) A 2018, together with the distinct arrangements and divergences for the UK’s devolved administrations, fall outside the scope of this Practice Note. Evaluation of particular instruments, provisions or rights, and whether they are retained, is likewise excluded. what’s the difference? Both “retained EU law” and “assimilated law” describe the residual body of domestic law that originally stemmed from the UK’s membership of the EU. The labels mark two phases in the domestic legal system’s adjustment to...
Austria Is there an existing Co-operation Agreement or Memorandum of Understanding in place between the UK’s Financial Conduct Authority ( FCA) and the Austrian Financial Market Authority ( FMA)? Yes. The FCA has concluded a multilateral memorandum of understanding ( MMo U) with the European Securities and Markets Authority ( ESMA), alongside a set of bilateral memoranda of understanding ( Mo Us) with each EU/ EEA securities regulator. All of these took effect at the end of the Brexit transitional or implementation period ( TIP) on 31 December 2020. The MMo U and Mo Us provide for supervisory co-operation, enforcement and the exchange of information between the EU/ EEA securities regulators and the FCA, permitting the sharing of information on, among other areas, market surveillance, investment services and asset management activities. How is the FMA treating UK funds ( UCITS funds and AIFs) which were...
This Practice Note outlines how the Proceeds of Crime Act 2002 ( POCA 2002) addresses the sharing of information within the regulated sector and, specifically, how POCA 2002, Pt 7 ( Money Laundering) provides for voluntary disclosures, compulsory notifications and collaborative joint disclosure submissions (often called ‘super SARs’) These provisions should be read alongside the principal money laundering offences of: concealment, arrangement or the acquisition, use or possession of criminal property (refer to Practice Notes: Money laundering offences—concealing, disguising, converting, transferring and removing; Money laundering offences—acquisition, use and possession; and Money laundering offences—the arrangement offence), respectively non-disclosure of a suspicion of money laundering by a person in the regulated sector, a nominated officer within the regulated sector, or another nominated officer (refer to Practice Note: Money laundering offences—failure to disclose offences) tipping off within the regulated sector and acts that prejudice an...
This Checklist Intended for advisers to financial services firms within scope of the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017, SI 2017/692 ( MLRS)—including credit and financial institutions, cryptoasset exchange and custodian wallet providers—this Checklist supports compliance with the UK’s AML and CTF legal and regulatory regime. It focuses on the statutory and regulatory obligations around Enhanced Due Diligence ( EDD) where a firm determines that a customer or beneficial owner, or a business relationship or transaction, involves politically exposed persons ( PEPs), their family members, or known close associates—together often described as relatives and close associates ( RCAs). It reviews the expectations in Regulation 35 of the MLRS alongside the Financial Conduct Authority’s ( FCA) regulatory requirements. It draws on FCA materials, including Finalised Guidance: The treatment of politically exposed persons for AML purposes (...
This Practice Note offers an overview of pension liberation—explaining what it is, why it occurs, the common structures and principal features involved, and the issues each party should weigh in practice. For detailed guidance on the legal aspects arising in this context and related matters, see Practice Note: Pension liberation and pension scams—legal considerations. For further material on arrangements suspected of pension liberation and the steps taken by the Pensions Regulator up to 2018, see Practice Note: Pension liberation—actions taken by the Pensions Regulator until 2018 [ Archived]. For further insight into complaints decided by the Pensions Ombudsman concerning transfers of pension funds linked to pension liberation or scams up to 2018, see Practice Note: Pension liberation—key Pensions Ombudsman decisions up to 2018 [ Archived]. The rise of pension liberation In essence, a pension is a mechanism through which an individual, or an...
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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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